Deeming v Pesutto (No 3)

[2024] FCA 1430

FEDERAL COURT OF AUSTRALIA

Deeming v Pesutto (No 3) [2024] FCA 1430

File number(s):

VID 1023 of 2023

Judgment of:

O’CALLAGHAN J

Date of judgment:

12 December 2024

Catchwords:

DEFAMATION – proceeding against the Leader of the Opposition in the Victorian Parliament brought by a Member expelled from the Parliamentary Liberal Party – imputations pleaded in respect of five impugned publications – consideration of whether imputations conveyed –– consideration of whether publication of defamatory matter about the applicant has caused, or is likely to cause, serious harm to her reputation within the meaning of s 10A(1) of the Defamation Act 2005 (Vic) (the Act) – serious harm found – defences of public interest under s 29A of the Act, honest opinion under s 31 of the Act, Lange qualified privilege and contextual truth under s 26 of the Act pleaded – where defences not made out – where applicant sought general damages for non-economic loss – where applicant sought aggravated damages – assessment of damages – quantification of damages

Legislation:

Defamation Act 2005 (Vic) ss 10A, 10A(1), 20, 20(1), 20(2), 26, 29A, 29A(1)(b), 29A(3)(a), 29A(3)(g), 31, 31(4), 31(4)(a), 31(5)(b)(i), 34, 35(2), 35(2A), 35(2B), 36

Evidence Act 1995 (Cth) ss 56, 81

Judiciary Act 1903 (Cth) s 79

Defamation Act 2013 (UK) s 1

Cases cited:

Agustin-Bunch v Smith (No 3) [2023] VSC 277

Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158

Australian Broadcasting Corp v Chau Chak Wing (2019) 271 FCR 632

Australian Broadcasting Corp v McBride (2001) 53 NSWLR 430

Banks v Cadwalladr [2019] EWHC 3451 (QB)

Banks v Cadwalladr [2023] KB 524

Barilaro v Google LLC [2022] FCA 650

Barron v Vines [2016] EWHC 1226 (QB)

Bazzi v Dutton (2022) 289 FCR 1

Broome v Cassell & Co Ltd [1972] AC 1027

Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44

Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519

Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245

Chau v Australian Broadcasting Corp (No 3) [2021] FCA 44; (2021) 386 ALR 36

Deeming v Pesutto [2024] FCA 951

Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317

Dutton v Bazzi [2021] FCA 1474

Economou v de Freitas [2016] EWHC 1853 (QB); [2017] EMLR 4

Feldman v Polaris Media Pty Ltd (2020) 102 NSWLR 733

Greenwich v Latham [2024] FCA 1050

Hanson v Burston [2023] FCAFC 124; (2024) 413 ALR 299

Herron v HarperCollins Publishers Australia Pty Ltd (2022) 292 FCR 336

Hockeyv Fairfax Media Publications Pty Ltd (2015) 237 FCR 33

Jones v Dunkel (1959) 101 CLR 298

KSMC Holdings Pty Ltd v Bowden (2020) 101 NSWLR 729

Lachaux v Independent Print Ltd [2020] AC 612

Lange v Australian Broadcasting Corp (1997) 189 CLR 520

Lee v Wilson (1934) 51 CLR 276

Lehrmann v Network Ten Pty Ltd (Trial Judgment) [2024] FCA 369

Lewis v Daily Telegraph Ltd [1963] 1 QB 340

Lewis v Daily Telegraph Ltd [1964] AC 234

Massoud v Nationwide News Pty Ltd (2022) 109 NSWLR 468

Murdoch v Private Media Pty Ltd [2022] FCA 1275

Nassif v Seven Network (Operations) Ltd [2021] FCA 1286

O’Hagan v Nationwide News Pty Ltd (2001) 53 NSWLR 89

Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388

Peros v Nationwide News Pty Ltd (No 3) [2024] QSC 192

Plato Films Ltd v Speidel [1961] AC 1090

Prince Albert v Strange (1849) 2 De G & Sm 652; 64 ER 293

Riley v Sivier [2022] EWHC 2891 (KB); [2023] EMLR 6

Rush v Nationwide News Pty Ltd (No 2) [2018] FCA 550; (2018) 359 ALR 564

Russell v Australian Broadcasting Corp (No 3) (2023) 303 FCR 372

Russell v Australian Broadcasting Corp [2023] FCA 38

Stead v Fairfax Media Publications Pty Ltd [2021] FCA 15; (2021) 387 ALR 123

Stockerv Stocker [2020] AC 593

Sutcliffe v Pressdram Ltd [1991] 1 QB 153

Television New Zealand Ltd v Prebble [1993] 3 NZLR 513

Triggell v Pheeney (1951) 82 CLR 497

V’landys v Australian Broadcasting Corp [2023] FCAFC 80

Wilson v Mendelsohn [2024] EWHC 821 (KB)

Wood v Cox (1888) 4 TLR 652 at 656

Division:

General Division

Registry:

Victoria

National Practice Area:

Other Federal Jurisdiction

Number of paragraphs:

849

Date of last submission/s:

4 November 2024

Date of hearing:

16, 17, 18, 19, 20, 23, 24, 25, 26 and 30 September 2024 and 1, 2, 3, 4, 9, 14, 22, 23 and 24 October 2024

Counsel for the Applicant:

S Chrysanthou SC with B Dean

Solicitor for the Applicant:

Giles George

Counsel for the Respondent:

M J Collins AM KC with T J Mullen, H Jager and D Dexter

Solicitor for the Respondent:

MinterEllison

ORDERS

VID 1023 of 2023

BETWEEN:

MOIRA DEEMING

Applicant

AND:

JOHN PESUTTO

Respondent

ORDER MADE BY:	O’CALLAGHAN J
DATE OF ORDER:	12 DECEMBER 2024

THE COURT ORDERS THAT:

1.The proceeding be adjourned to a date to be fixed for the making of final orders.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

INTRODUCTION	[1]
WITNESSES	[17]
THE FACTS	[21]
Mrs Deeming	[22]
Mr Pesutto	[39]
Events in 2022	[44]
Mrs Deeming and Mr Pesutto meet in December	[44]
Mr Pesutto elected as Leader of the Victorian Liberal Party	[46]
Mrs Deeming elected as Whip	[48]
Mrs Deeming learns of LWS rally	[51]
January – February 2023	[52]
8 to 17 March 2023	[76]
18 March 2023	[94]
The LWS rally	[94]
After the rally	[129]
19 March 2023	[150]
The 19 March meeting	[170]
Drafting of the media release	[199]
After the 19 March meeting	[206]
The media release	[218]
Media about the LWS rally and Mrs Deeming on 18 and 19 March 2023	[234]
18 March	[234]
19 March	[239]
20 March 2023	[247]
The 3AW interview	[248]
The ABC interview	[253]
The press conference	[263]
The expulsion motion and dossier	[268]
21 March 2023	[290]
Communications to Mr Pesutto and the Liberal Party on 20 and 21 March 2023	[298]
24 March 2023	[307]
26 March 2023	[308]
27 March 2023	[311]
28 to 30 March 2023	[336]
April 2023	[342]
May 2023	[350]
Other evidentiary issues	[380]
Jones v Dunkel	[384]
Section 20 of the Defamation Act	[392]
THE PLEADED CASE	[404]
The media release	[406]
The 3AW interview	[413]
The ABC interview	[419]
The press conference	[425]
The expulsion motion and dossier	[430]
The “grouping” of the pleaded grounds letter	[437]
ARE THE MEANINGS CARRIED?	[441]
Applicable principles	[441]
The media release	[453]
“Associates” and “associations”	[463]
The 3AW interview	[467]
The ABC interview	[487]
The press conference	[498]
The expulsion motion and dossier	[512]
ALL MEANINGS CARRIED ARE DEFAMATORY	[516]
HAS MRS DEEMING PROVED THAT THE PLEADED PUBLICATIONS CAUSED OR WERE LIKELY TO CAUSE SERIOUS HARM TO HER REPUTATION?	[518]
The law	[518]
The evidence of Mr Campey	[535]
Consideration of serious harm issue	[546]
Mrs Deeming’s reputation	[551]
Abuse directed at Mrs Deeming post publications	[590]
Serious harm established	[615]
DEFENCES	[616]
Public interest	[622]
Consideration	[649]
Did Mr Pesutto subjectively believe that publication of each of the impugned publications was in the public interest?	[649]
Was Mr Pesutto’s subjective belief that publication of each of the impugned publications was in the public interest a reasonable belief?	[677]
Honest opinion	[704]
The media release, the 3AW and ABC interviews and the press conference publications	[707]
The EMD	[725]
Lange qualified privilege	[753]
Contextual truth	[754]
DAMAGES	[755]
Damages	[755]
Aggravated damages – applicable principles	[763]
Claim for damages for non-economic loss considered	[768]
The seriousness of the defamation	[775]
Evidence of Mrs Deeming’s reputation	[777]
Damage to Mrs Deeming’s reputation	[796]
Extent of publication	[809]
Extent of republication	[812]
Mitigation	[825]
Quantum of damages for non-economic loss	[828]
Claim for aggravated damages considered	[832]
DISPOSITION	[849]
ANNEXURE A (TRANSCRIPT OF THE 3AW INTERVIEW)
ANNEXURE B (TRANSCRIPT OF THE ABC INTERVIEW)
ANNEXURE C (TRANSCRIPT OF THE PRESS CONFERENCE)
ANNEXURE D (EXPULSION MOTION AND DOSSIER)

O’CALLAGHAN J

INTRODUCTION

1. The applicant, Mrs Moira Deeming MLC, is a politician.  She is a Member of the Victorian Parliament for the Western Metropolitan Region in the Legislative Council.  She was elected on 26 November 2022.

2. She is a member of the Victorian Liberal Party; and from 26 November 2022 until her expulsion on 12 May 2024, she was a member of the Victorian Parliamentary Liberal Party.

3. The respondent, Mr John Pesutto MP, is also a politician.  He is a Member of the Victorian Parliament for the electoral district of Hawthorn in the Legislative Assembly, and was also elected on 26 November 2022.  He is a member of the Victorian Liberal Party.  And since 8 December 2022, he has been the Leader of the Opposition and the Leader of the Victorian Parliamentary Liberal Party (which I shall also refer to as the party).

4. Mrs Deeming is, and has been for some years, a passionate advocate for the preservation or reinstatement of sex-based rights and safeguards for women and children (such as female only bathrooms and changerooms). 

5. On Saturday 18 March 2023, she attended and briefly spoke at a “Let Women Speak” rally on the steps of Parliament House in Melbourne, conducted by a UK-based organisation called Standing for Women (SFW).  I will refer to this as the LWS rally.  SFW was founded by a woman named Ms Kellie-Jay Keen (sometimes also known as Posie Parker) who led the LWS rally.

6. At around the same time, various other protestors gathered to express their views.  They included “trans rights” and gender diverse activists, and a group of men in black clothing who were identified as members of the National Socialist Network, and were described as “Nazis” or “neo-Nazis”.

7. As a result of what occurred in and around the steps of Parliament House that day, Mr Pesutto put matters in train to have Mrs Deeming expelled from the party, which ultimately occurred.

8. In the course of doing so, over the course of a few days after the rally, Mr Pesutto issued a media release, gave radio and TV interviews, held a press conference and caused to be distributed to media outlets an “expulsion motion and dossier”.

9. Mrs Deeming alleged in this proceeding that, in the course of doing so, Mr Pesutto defamed her, including because he falsely accused her of associating with neo-Nazis.  She sought, among other things, an order that he pay her damages, including aggravated damages.

10. Mr Pesutto admitted that he defamed Mrs Deeming, but not in the way she alleged.  He contended that Mrs Deeming’s pleaded imputations are not carried and that he is entitled to rely on defences, including of public interest and honest opinion.  Accordingly, Mr Pesutto submitted that the proceeding against him should be dismissed.

11. Ms S Chrysanthou SC with Mr B Dean of counsel appeared for Mrs Deeming.

12. Dr M J Collins AM KC appeared with Mr T J Mullen, Ms H Jager and Mr D Dexter of counsel for Mr Pesutto.

13. The trial of the proceeding occupied 19 hearing days.  Closing written submissions, including a number of highly detailed schedules, comprised almost 1,000 pages, as follows:

    (a)The applicant’s closing submissions dated 18 October 2024 (ACS) plus:

    (i)Annexure A, entitled “Chronology of the Let Women Speak Rally” (ACS Annexure A);

    (ii)Annexure B, entitled “Extent of Publication” (ACS Annexure B);

    (iii)Annexure C, entitled “Respondent’s allegations regarding ‘controversy’ about Mrs Deeming, media reporting about her, and her prior reputation” (ACS Annexure C);

    (iv)Annexure D, entitled “Abusive emails / messages received by Mrs Deeming following the Publications” (ACS Annexure D); and

    (v)Annexure E, entitled “Social media posts about Mrs Deeming following the Media Release” (ACS Annexure E).

    (b)The respondent’s closing submissions dated 18 October 2024 (RCS) plus:

    (i)Schedule A, entitled “Detailed Factual Chronology and Summary of Evidence” (RCS Schedule A);

    (ii)Schedule B, entitled “Table of alleged republications” (RCS Schedule B); and

    (iii)Schedule C, entitled “Table of media and social media prior to Publications” (RCS Schedule C).

14. Over 40 affidavits were filed and relied upon by the parties, and more than 800 exhibits were tendered in evidence.

15. Given the very large volume of material, I have endeavoured to include in these reasons references to the court book, the transcript, the exhibits and the submissions where it is helpful to do so.

16. The affidavits, submissions, exhibits and other publicly accessible documents can be accessed on the Online File.

    WITNESSES

17. Mrs Deeming read and relied upon two affidavits sworn by her on 27 May and 23 July 2024 respectively (Court Book Part B – Affidavits (CB):1; CB:2).  She also relied on the evidence of:

    (1)Mr Andrew Deeming, her husband (CB:4);

    (2)Mr Geoffrey Campey, Principal of Social Media Evidence Experts (Court Book Part B – Expert Evidence (CBE));

    (3)Ms Raewyn Clark, a member of the Liberal Party who attended the LWS rally (CB:3);

    (4)Ms Angela Dennis, a woman who attended the LWS rally (CB:5);

    (5)Mr Christopher Duke, a Senior Minister of the Presbyterian Church (CB:6);

    (6)Mr Rukshan Fernando, a videographer and independent journalist who filmed the LWS rally and the other groups and protestors in the vicinity of Parliament House on 18 March 2023 (CB:7);

    (7)Ms Renee Gorman, who works part-time as an electoral officer for Mrs Deeming (CB:8);

    (8)Ms Renee Heath MLC, the Liberal Member for the Eastern Victoria Region in the Victorian Legislative Council (and between December 2022 and May 2023, Secretary of the Victorian Parliamentary Liberal Party) (CB:9; CB:10);

    (9)Senator Sarah Henderson, a Liberal Senator for Victoria in the Australian Parliament (CB:11);

    (10)Mr David Hodgett MP, the Liberal Member for Croydon in the Victorian Legislative Assembly (CB:12; CB:13);

    (11)Ms Anna Hughes, a catering assistant who performs casual administrative work for Mrs Deeming (CB:14);

    (12)Mr Joseph McCracken MLC, the Liberal Member for the Western Victoria Region in the Victorian Legislative Council (CB:15; CB:16);

    (13)Mr Nyunggai Warren Mundine AO, a senior member of the Liberal Party (CB:17);

    (14)Ms Susannah Oddi, a woman who attended the LWS rally (CB:18);

    (15)Ms Helen Papadimitriou, a woman who attended the LWS rally (CB:19);

    (16)Mr Richard Riordan MP, the Liberal Member for Polwarth in the Victorian Legislative Assembly (CB:20; CB:21);

    (17)Mr John Ruddick MLC, a Member of the New South Wales Legislative Council and a member of the Libertarian Party (formerly the Liberal Democratic Party) (CB:22);

    (18)Mr Ryan Smith, the former Liberal Member for Warrandyte in the Victorian Legislative Assembly (CB:23; CB:24);

    (19)Ms Dayna Thompson, an accountant who is a close friend of Mrs Deeming and is involved in the Liberal Party (CB:25);

    (20)Ms Naomi Walton, a paramedic who attended the same church as Mrs Deeming (CB:26);

    (21)Mr Kim Wells MP, the Liberal Member for Rowville in the Victorian Legislative Assembly (CB:27; CB:28); and

    (22)Ms Rachael Wong, the Chief Executive Officer of Women’s Forum Australia (WFA) (CB:29).

18. Mrs Deeming, Mr Campey, Mr Duke, Ms Heath, Mr Hodgett, Mr McCracken, Mr Riordan, Mr Smith, Ms Walton, Mr Wells and Ms Wong were cross-examined.

19. Mr Pesutto read and relied upon two affidavits affirmed by him on 27 May and 22 July 2024 respectively (CB:30; CB:31).  He also relied on the evidence of:

    (1)Dr Matt Bach, the former Liberal Member for the North-Eastern Metropolitan Region in the Victorian Legislative Council and Deputy Leader of the Liberal Party in the Legislative Council from December 2022 until August 2023 (CB:32; CB:33);

    (2)Ms Georgie Crozier MLC, the Liberal Member for the Southern Metropolitan Region in the Victorian Legislative Council and Leader of the Liberal Party in the Legislative Council since December 2022 (CB:34; CB:35);

    (3)Mr Nick Johnston, Director of Communications to Mr Pesutto from 13 March 2023 to 3 March 2024 (CB:36);

    (4)Mr Rodrigo Pintos-Lopez, chief of staff to Mr Pesutto from 13 March 2023 to 3 March 2024 (CB:37; CB:38);

    (5)Mr David Southwick MP, Liberal Member for Caulfield in the Victorian Legislative Assembly and Deputy Leader of the Opposition since December 2022 (CB:39; CB:40);

    (6)Ms Louise Staley, former Liberal Member for Ripon in the Victorian Legislative Assembly and chief of staff to Mr Pesutto since 3 March 2024 (CB:41);

    (7)Mr Alex Woff, Director of Media to Mr Pesutto from 1 March 2023 to 4 March 2024, and Director of Communications to Mr Pesutto since 4 March 2024 (CB:42).

20. Each of them was cross-examined. 

    THE FACTS

21. Because of the large volume of material that was adduced into evidence, I asked the parties during closing submissions to agree upon a document that set out an Agreed Factual Narrative.  This was emailed to chambers after the completion of the trial, but has not yet been electronically filed, and I have used it to assist me, partly, to chart a course through the mountain of evidence.

    Mrs Deeming

22. Mrs Deeming was born in 1983 in Timboon, Victoria.

23. She attended a Catholic High School in Beaconsfield, and obtained her Victorian Certificate of Education in 2001.

24. She was awarded a scholarship to study at La Trobe University, and studied there from 2002 to 2005, obtaining a Bachelor of International Relations in 2005.

25. She met her husband in 2003, and they married in October 2005.

26. That same year, or thereabouts, they joined the Liberal Party.

27. In 2006, Mrs Deeming obtained a Post-Graduate Diploma of Education from the University of Melbourne, and from 2006 onwards, she worked at various private and secondary schools, teaching English, Literature, Legal Studies, Philosophy, Science and Psychology.  She has four children.

28. In February 2008, upon the birth of their first child, Mr and Mrs Deeming let their membership of the Liberal Party lapse, for want of time.

29. Inspired by a talk which they attended by Mr John Anderson AC, they rejoined the Liberal Party in early 2014.  That same year, Mrs Deeming was asked to run for the Liberal Party in the upcoming Victorian state election.

30. She was preselected for the seat of St Albans and ran, unsuccessfully.  She achieved 32.5% of the two party preferred vote.

31. In 2018, Mrs Deeming was encouraged by a number of Liberal Party members to run for the number two “spot” for the Western Metropolitan Region in that year’s election.  She was not successful, but instead accepted the unwinnable third spot.  She campaigned for the Liberal Party in all 11 seats in that region.

32. In 2020, Mrs Deeming won election as a councillor in the City of Melton, where she served until 2022.  She gave evidence that she used her position to seek to foster Liberal Party values in the political sphere, as a known Liberal Party member, and “networked with many people and organisations across the political spectrum, including to attempt to build a working political consensus around the protection and reinstatement of sex-based rights”.

33. In March 2022, Mrs Deeming unsuccessfully sought endorsement as the Liberal Party candidate for the Federal Electoral Division of Gorton.

1. She was pre-selected, but not endorsed, because, according to evidence given by Ms Crozier, the then Prime Minister, Mr Scott Morrison, thought her views on some social issues were considered too extreme and politically risky.

2. On 23 July 2022, Mrs Deeming was selected by delegates at a Preselection Convention as the Liberal candidate for the Western Metropolitan Region for the November 2022 Victorian state election.

3. Later that month, the Liberal Party of Australia’s Administrative Committee (Victorian Division) met, including to determine whether to endorse the delegates’ selection of Mrs Deeming.

4. Mrs Deeming was endorsed, but not unanimously.  Ms Staley, who at the time was the Member for Ripon, and Mr Michael Kroger, the Immediate Past President of the Division, voted not to endorse her.

5. Mrs Deeming was elected at the 2022 election.

   Mr Pesutto

6. Mr Pesutto has practised as a lawyer at various points from 1994.  In 1996, he took a year off to become a political staffer, and returned to practice in 1997 until 2011, when he joined the staff of Mr Edward Baillieu AO, the then Premier of Victoria.

7. Mr Pesutto was elected as the Liberal Member for the seat of Hawthorn in the 2014 Victorian state election.  Between December 2014 and December 2018, he was the Shadow Attorney-General.

8. Mr Pesutto deposed that while he was Shadow Attorney-General, he was generally aware of Mrs Deeming as becoming active in the Victorian Liberal Party, but that they did not have a lot to do with each other at that time.

9. Mr Pesutto lost his seat in the 2018 election, after which he became a Senior Fellow at the School of Government at the University of Melbourne, and returned to legal practice.

10. In November 2021, he was endorsed as the Liberal candidate for Hawthorn for the 2022 election.  He regained his seat at that election.

    Events in 2022

    Mrs Deeming and Mr Pesutto meet in December

11. In early December 2022, Mrs Deeming and Mr Pesutto had a conversation over coffee at the Watergardens Hotel in Taylors Lakes.  Mrs Deeming and Mr Pesutto have slightly different recollections of what they said to each other about issues relating to sex-based rights and safeguards for women and children, and how Mrs Deeming should advocate for such rights without being a “one issue” parliamentarian, but the nuances of those differences are of no moment.  Mrs Deeming said her recollection was that Mr Pesutto was trying to gain her support and win her vote to be Leader of the Party, something which Mr Pesutto accepted in cross-examination.

12. Following that meeting, on 6 December 2022 Mrs Deeming sent Mr Pesutto a video of an excerpt from a Senate inquiry interaction between her and Greens Senator Janet Rice.  Mr Pesutto responded saying “Very calmly done Moira. Thanks too for your time and consideration yesterday.  I know it’s a tough decision and I appreciated the opportunity. Cheers, JP”.  The “tough decision” was no doubt a reference to the leadership issue.

    Mr Pesutto elected as Leader of the Victorian Liberal Party

13. On 8 December 2022, there was a party room meeting to vote for the leadership of the Victorian Parliamentary Liberal Party, and Mr Pesutto was elected.

14. After the meeting, Mrs Deeming texted Mr Pesutto, saying, “Congratulations on the win! I’m looking forward to working with you :)”.  Mr Pesutto responded, “Likewise Moira. You’ll be great in Parliament. I’ll touch base to organise a time when we can catch up as we discussed over coffee. I hope you enjoyed today. Cheers, JP”.

    Mrs Deeming elected as Whip

15. After he was elected Leader, Mr Pesutto suggested that Mrs Deeming apply for the position of Liberal Party Whip in the Legislative Council (CB:2, 62[16]).  Under the party’s constitution, the role of Whip is filled by election, by a vote of members of the party who are Members of the Legislative Council.

16. Mr Pesutto testified that he supported her candidacy and that in doing so he was, as he agreed in cross-examination, expressing to the Parliamentary Party that he was “happy to be associated with Mrs Deeming” (Transcript (T) 650.4–8).

17. At a meeting in late December 2022, either Mr Pesutto or Ms Crozier (it is unclear who) nominated Mrs Deeming for the position of Whip.  She was unanimously elected.

    Mrs Deeming learns of LWS rally

18. In late 2022, Mrs Deeming learned that Ms Keen and SFW would be embarking on an international “Let Women Speak” tour, and that a rally would be hosted in Melbourne on 18 March 2023 (CB:2, 69[40]).  Mrs Deeming gave evidence that her “understanding at the time was that SFW was an organisation run by Ms Keen which advocates for the preservation and/or reinstatement of reasonable biological sex-based rights (such as female only bathrooms and changerooms) as well as against the irreversible and harmful medical transitioning practises used on gender non-conforming, autistic and gay minors”; that “the organisation and its goals were mainstream and global, and supported by high profile members of every mainstream political party in the world”; and that SFW coming to Australia “was an opportunity to shine light on these issues” about which she (Mrs Deeming) was passionate.

    January – February 2023

19. At some stage after this, Mrs Deeming contacted Ms Keen to introduce herself, and to ask if there was anything she could do to help (CB:2, 70[42]).  Ms Keen told her that she already had a Melbourne team organising the LWS rally, but she suggested that Mrs Deeming get in contact with Ms Angie Jones, one of the key organisers, to see if she could help her.

20. On 10 January 2023, Mrs Deeming messaged Ms Jones to see if she could “help out in the background in any way” (CB:2, 70[44(a)]).

21. In January 2023, Mrs Deeming attended a two-day Coalition Conference (CB:1, 8[39]).

22. Either at the conference, or around that time, Mrs Deeming had conversations with Mr Pesutto (CB:1, 8[40], CB:31, 364[3]).  They have slightly different recollections of what was said.

23. Mrs Deeming said she again raised with Mr Pesutto her advocacy for sex-based rights.  She told him she wanted to advocate for these issues, about which she felt strongly, but that she never wanted to do it in such a way as to cause trouble within the team.  She asked if he would meet with her in the near future to give her advice as to how she should advocate for these issues without dividing the team.  Mrs Deeming said that Mr Pesutto agreed, but never contacted her to set up a meeting.

24. She also swore that she told Mr Pesutto that she planned on attending Ms Keen’s LWS rally in March 2023; that Mr Pesutto said that he did not know who Ms Keen was; that she encouraged him to look her up; and that it would be good if he met with her, and some of the other women, to hear their views.

25. At some stage after this, Mrs Deeming said she had another conversation with Mr Pesutto in which she again raised that she planned on attending the LWS rally and again invited him to meet Ms Keen, on 18 March 2023, privately before the LWS rally, so he could hear her views and perspectives (CB:1, 8[40]).  Mrs Deeming said that Mr Pesutto agreed and asked her to book in the meeting with his office, which she said she did.

26. Mr Pesutto accepted in cross-examination that he had a conversation with Mrs Deeming in which she told him there were people coming to Melbourne and that she may have mentioned Ms Keen and asked whether he could meet with them (T651.14–21).  He gave evidence that he did not agree to meet them but rather gave “a non-committal” response to the effect of “[j]ust talk to my office” (T651.23–26).  In any event, Mr Pesutto did not meet with Ms Keen before the LWS rally.

27. Between 17 and 24 January 2023, Mrs Deeming and Ms Keen exchanged a series of messages relating to the organisation of the LWS rally in Melbourne.

28. On 4 February 2023, Mrs Deeming and Mr Pesutto attended a “Western Metropolitan Meet & Greet” event.  Mr Mundine also attended.

29. During February 2023, Mrs Deeming booked the front steps of Parliament House to be used for the LWS rally (Ex R4); agreed to be registered as an additional police contact for the rally (Ex R2; Court Book Part C – Evidence (CC):125); arranged for the sound equipment (Ex R137; CC:148); and exchanged emails with a company to arrange security for Ms Keen (Ex R5).

30. On 18 February 2023, Mrs Deeming also provided Ms Keen with tables summarising the way in which different attributes were protected by anti-discrimination laws in the Commonwealth and each state and territory, and a table of laws regarding change of sex on birth certificates (T150.30–31; Ex R8).

31. Mrs Deeming delivered her maiden speech in Parliament on 21 February 2023 (CB:1, 6 [33]).  Mr Pesutto attended.  Despite it being referred to on many occasions during the trial, the content of her speech was not in evidence.

32. The parties have a different take on how the speech was received.

33. Mrs Deeming’s husband gave unchallenged evidence that he attended the maiden speech and saw the gallery was full of her supporters, and that it was “as diverse a group of people as you could imagine – Christians, Muslims atheists, lesbians and gay men, and detransitioners”, as well as members of the Liberal and Labor parties, and the Greens (CB:4, 118[37]).

34. Mrs Deeming pointed to what she submitted was “an overwhelming weight of evidence to show that [her maiden speech] was positively received”, as follows:

    (a)Ms Heath sent her supportive texts saying, “Seriously!!!! You!!!! Rock!!!!” (Ex A98; CC:156) and “You were outstanding yesterday!!! I’m still on a high. My family want the link when you get it” (Ex A107; CC:174);

    (b)Ms Beverley McArthur MLC (Liberal Member for the Western Victoria Region in the Legislative Council) sent her a text message (Ex A99; CC:157) saying, “Wonderful speech. Congrats. It was fabulous”;

    (c)Dr Bach sent her a text message (Ex A59; CC:158) that said, “Amazing and powerful speech”;

    (d)Mr Chris Crewther MP (Liberal Member for Mornington in the Legislative Assembly) sent her a text message (Ex A100; CC:159) saying, “Well done on your maiden speech today. I was able to get to the last three-quarters of it. It was very strong, and said a lot of what many people are likely thinking, but are afraid to speak. Well done!”;

    (e)Mr Nick McGowan MLC (Liberal Member for the North-Eastern Metropolitan Region in the Legislative Council) sent her a text message (Ex A108; CC:175) saying, “superstar!”;

    (f)Mrs Deeming’s staffer, Mr Paul Lassig, sent her an email on 23 February 2023 saying, “So many people have called into [sic] support you. Messages streaming in from everywhere” (Ex A110; CC:178);

    (g)At a meeting held on 19 March 2023 (which I will address in detail below):

    (i)Mr Southwick said, “95% of that speech was amazing. Brilliant. Amazing. Unbelievable. It was one of the best speeches. And then you wanted to frame it that way, you have chosen to frame it that way” (Ex A2, lines 781–783); and

    (ii)Mr Pesutto described it as a “good speech” (Ex A2, line 784).

    (h)In his affidavit, Mr Pesutto gave evidence he thought “it started as a great speech” but “then took a turn when towards the end Mrs Deeming made” what he described as “various controversial statements in relation to transgender people and sex-based rights” (CB:30, 332[29]).

    (i)Ms Crozier gave evidence that she “personally thought [Mrs Deeming’s] speech was fine and congratulated her on it” (CB:34, 412[20]).

    (j)Mrs Deeming gave evidence that:

    (i)she received many emails from members of the public which her staffers told her “were overwhelmingly positive” and had been sent “by people across the political spectrum” (CB:1, 6[34]) (some of these emails are in evidence at Ex A113; CC:184);

    (ii)she received many messages, including on Facebook, which praised her speech and were otherwise supportive (CB:1, 6[35]) (some of these messages are in evidence at Ex A112; CC:183); and

    (iii)her speech was posted online “and went viral” and that she received positive comments and feedback online where videos of the speech had been uploaded (CB:1, 6[36]) (for example, positive comments about Mrs Deeming’s maiden speech in response to a YouTube video about it are Ex A114; CC:188);

    (k)Mrs Deeming posted a Facebook post about her speech on 22 February 2023 (Ex A101; CC:166) which received hundreds of positive responses (which are Ex A102; CC:167);

    (l)Mrs Deeming published a tweet about her speech on 22 February 2023 (Ex A103; CC:168) which received at least 87 positive responses (which are Ex A104; CC:169);

    (m)Ms Wong gave evidence that she posted a tweet with an excerpt of a recording of Mrs Deeming’s speech, which received 2600 “likes”, was “reposted” 750 times, and received 77 “comments” which were “overwhelmingly supportive” of Mrs Deeming (CB:29, 318–319[9]–[12]). (A copy of a selection of those comments is at CC:171);

    (n)WFA also posted a Facebook post about Mrs Deeming’s speech (Ex A105; CC:172), which received approximately 1300 comments which were positive towards Mrs Deeming (Ex A106; CC:173).

35. Mr Pesutto, on the other hand, sought to emphasise at trial what he described as the “widespread negative media coverage” of the maiden speech in The Age newspaper and other mainstream publications.  He cited and produced two articles that he said he saw at the time (“New Liberal MP uses first speech to slam equality ‘taken to extremes”’ (The Age, 21 February 2023) (Ex R140); and “Premier hits back at new MP’s transgender comment” (news.com.au, 22 February 2023) (Ex R141)).

36. On 22 February 2023, Mrs Deeming and Mr Pesutto exchanged a number of text messages about arranging to meet that day.  They arranged to meet at 7.15pm.  Shortly before their scheduled meeting, Mr Pesutto was informed that Mrs Deeming was out at dinner with other MPs and sent her a message at 7.14pm, which said, “I’m in my office Moira. Did you still want to meet?”  Mrs Deeming responded at 7.23pm, “It’s ok I’m sorry” (Ex R546; Ex A109).

37. On 23 February 2023, documents from Mrs Deeming’s Melton City Council email account were obtained and publicly released pursuant to a freedom of information (FOI) request made by Sex Work Law Reform Victoria.

38. That same day, Mrs Deeming met with Ms Crozier and Mr Pesutto, following publication in the Herald Sun newspaper of an article critical of her, apparently based on the content of some of those emails.

39. Mrs Deeming secretly recorded the meeting.

40. The audio recording is Ex R73.  The agreed transcript of it is Ex R72.

41. These are the relevant parts of what was said (errors in the original):

    JP [Mr Pesutto]: The media wanna tear us up big time over the stories in the Herald Sun today and the stuff in the media recently. Um we’ve got Danny Pearson on the ropes but that’s now been washed away. Um I suppose I wanted to have an initial conversation to see how we’re going to deal with these serious issues because I know that there are deeply held views and I’ve said to you and said to others that I’d never ask anybody to change their views but this is what we’re gonna get hit with every time we go out. I can’t send anybody out now without issues around you coming up. Just went out there yesterday to smash Pearson um and the press conference immediately or very soon turned to you. I’ve gotta go out today and I’ve gotta face a press pack where I would have liked to have been talking about Danny Pearson resigning. I’m gonna have to put that off. Um so, I know we all come in here with views and I would never ask anyone to change their views and I mean that but we’re gonna have to work out how we do this in a way which allows the party to reach out broadly across the cross section of the community and win elections. We just can’t do it. We we will just get smashed and I can’t see if if we don’t have a way of working through these issues I just don’t see how we’re gonna do it in a way where we can win seats across the board and form government. Um so I wanted to have an initial chat because I think what I’m gonna get attacked with today is that um we hate and I know you’ll have something to say on this but the the line they’re going to run is that we support harmful speech, we hate same sex transgender people, we hate transgender people, we you know we’re um we’re fiercely opposed to um anyone in that community. Now I know you have views on that but we’re gonna, we’re gonna need to come up with something because um I’m gonna get torn apart and and not just me everyone is. No shadow will be able to go out there and face the media on issues that we actually want to talk about until we find a way just to say okay people are entitled to their views um---

    MD [Mrs Deeming]: I would very much like it if none of you would let it stand when they say what do you think about Moira’s anti-trans views. I don’t have anti-trans views I don’t have homophobic views. No one has ever been able to come up with any evidence that I do and yet I’m labelled with those words.

    JP: Yeah they’re certainly picking apart, I mean I I haven’t had a chance to go through all the emails um---

    MD: Which emails?

    JP: Uh the emails that are referred to in the Herald Sun um---

    …

    So I think, I think we need to put something out like that to calm it down because um they’re, they’re in a---

    GC [Ms Crozier]: frenzy

    JP: ---the media pack. Um it’s almost like I, I wish I could cancel question time ‘cause they’re not gonna be the slightest bit interested in what we asked about this and so um I think that---

    MD: We have a good argument and it’s better than Moira has those views. I don’t have homophobic or transphobic views.

    JP: Okay. We---

    MD: There is no evidence that I have those views. All they have got is me asking questions about what does the law mean and me saying can we not find a different way to balance the laws so that we can look after transgender people as well as protect single sex rights. That is all I’ve ever done and also I have questioned the, the automatic affirmation processes. They’ve been, they have been questioned all around the world. There’s gonna be an inquiry coming whether anyone likes it or not. Now in terms of whatever you wanna say on those issues agree or not I would never let it stand. I would never let it stand. If they say what do you think about her transphobic views and you say oh well she has views that are different to mine that will enrage me at no end. I don’t have transphobic views and you should defend me. I’ve never said anything transphobic or hateful I’ve never said anything homophobic. My biggest fans are gay people and trans people. They were in my audience.

    …

    MD: You, but even for you even not defending me it’s like you’re admitting there’s someone in our party with transphobic views and we can’t get rid of them because of free speech.

    JP: But Moira you know how this debate is it’s feverish. People take signals. So right now unless I go out there and assure people they are gonna think things and I, I---

    MD: What would your vision of ins-, like reassuring people be?

    JP: That no matter who you are because they don’t think that about you. No matter what you say they don’t think that about you.

    …

    MD: I think they’re gonna do it because they smell blood in the water because no one’s coming up with a strong response. If we just bit back and said actually, not a single homophobic or transphobic thing was said. You name the one thing that was said. They’ve got nothing. I said nothing bad.

    GC: In their eyes though it is being that, in their eyes as John said it is, it is one dimensional. They’re not, they’re not taking on board. I mean I haven’t read the 100 emails but I’m getting emails.

    MD: I’m getting emails of support.

    GC: Well that’s alright I’m not. I’m getting the others where the 100 emails to Council [?]---

    MD: Yeah because they want you all to fold and act like it’s homophobic and transphobic just to care about single sex spaces which is absurd and internally incoherent. They are, the trans and the gays they’re opposed. They’re telling lesbians that they have to date biological men it’s rape culture. You can easily win this argument you can easily turn it back against them. It’s up to you whether you’re going to.

    JP: Yeah. I, I don’t accept that. I think you’ve gotta live in in the real world Moira and we, I, I just don’t think you see what a train yeah coming our way. We will not be able to define ourselves as anything other than a party focused on these issues and I, I’ve, I’ve never said that I wanted anyone to change their views but I’ve gotta tell you that’s all we’re gonna get defined as.

    …

    GC: Well that’s your view and I had a view and I have a strong view about medical intervention on children and I made that very clear in my debate. However, we’re at this point where we’ve got a very big issue for our party as John has said and that’s what we need to work through now.

    MD: I don’t know what you’re asking of me and what you’re telling me that you’re going to do.

    JP: Well I’ve still gotta formulate my language because it’s gonna be one mean press conference. They are going to try to tear me to shreds um and they’re gonna use it as my test on whether the party’s a broad based party and this and that. It doesn’t matter what we might finesse in here they are going to try and tear not just me the party.

    GC: Oh all of us.

    JP: In a week where we had pear-, we’ll, we’ll see what happens. The government is all putting all guns blazing into making that press conference. Andrews has come out calling on me today.

    MD: I can get you not today but you know like I can get you a row of lesbians to stand around you and back you up in a press conference. I can get you a bunch of parents like I’m just saying.

    JP: Yeah. So Moira what I’m going to do is I’m just gonna do a bit more planning um and I might need you just to come and have a chat so I can go over what I’m gonna say or propose to say um but we’ve just gotta be in communication this afternoon. Um these things aren’t as simple as just putting someone out here or someone had to stand with it. It, it’s as you well know you’ve been around politics now a while uh it doesn’t quite work like that. Um they’ve got a narrative they’re trying to validate and they’re going to try---

    …

    JP: Well um this was the first chat and I think we’re gonna need another one uh before I go out. Um and I just wanted to get your sense of things. And [?]---

    MD: My sense of things is you are not as vulnerable as you feel that you are. You think they’re gonna find something. There’s nothing.

    JP: It’s not just that. This is, this is narrative shaping stuff [?].

    …

    JP: ---[?]. And I was gonna call on a minister today to resign in less than an hour about an hour I was gonna call on a minister to resign which I wouldn’t and don’t ever plan to do lightly. And I’m, well that’s actually [?] ‘cause the press pack just don’t wanna talk about it they’re not interested, they’re interested in us. Um and you know what I, what I just wanna do is try and shift us as a team onto the issues that are gonna win us the seats where we need to win and then we can you know implement an agenda that we can be proud of but if I’m going out there every day talking about these things I can tell you all ministers shadow ministers or any of us we’re gonna find that really hard. And you know Labor has 56 seats so we’ve got a big job to state the obvious.

1. Later that day, Mr Pesutto held a press conference.  A transcript of it is Ex A111; CC:180.  The stated purpose of the press conference was for Mr Pesutto to make statements and take questions about an issue relating to Mr Danny Pearson MP (a Minister in the Labor Andrews government), which he did.  A considerable part of the press conference was, however, taken up with questions from journalists about Mrs Deeming’s “views”.  It concluded as follows:

   JOURNALIST: Can I just clarify, do you condemn Moira Deeming’s views?

   [MR] PESUTTO: I don’t agree with those views.

   Everybody knows I’m a very inclusive leader. I believe in a Victoria where all Victorians have an opportunity to reach their full potential no matter what their background.

   I’ll let Moira speak to her views but my position on these issues is clear and has been for a long time. Everybody knows me and that I’m a modern progressive liberal who believes in these values and I’ll make sure that under my leadership we will be a strong voice for all Victorians no matter what their background.

   8 to 17 March 2023

2. Mrs Deeming gave a speech in Parliament on 8 March for International Women’s Day, in which she said she would be attending the LWS rally and invited the Minister for Women, Ms Natalie Hutchins MP, to attend (CB:1, 7[37]).  The speech explained in a summary way Mrs Deeming’s views about “sex-based rights”:

   My adjournment matter is also for the Minister for Women. First of all, I would like to note that on this International Women’s Day it is my honour to be a part of the first ever Legislative Council to have a majority of female MPs. In many ways we women of the upper house are treading a path opened up for us by Dame Enid Lyons, who was the first woman elected to the House of Representatives and who was also a proud member of the Liberal Party.

   However, I must also note with sadness the scandalous fact that women’s rights have actually gone backwards in this state. Many of the hard-won rights that women have fought for so that we could fully and equally participate in public life over the course of the last 100 years are lost. We no longer have the right to female-only public toilets, change rooms and refuges, and all those so-called affirmative action measures like gender quotas, scholarships and grants that were supposed to be just for women are lost now too. Female-only sports leagues, which gave so many young women, me included, access to fair and fun sporting competition are now also lost. Females have lost the right - the basic right - to associate exclusively with each other. We are not allowed to have female-only gyms, and even lesbians are not allowed to have female-only dating apps. Violent male sexual offenders are housed with vulnerable female prisoners. In fact there is a vulnerable group of women in my area, in the Dame Phyllis Frost correctional centre, who have reached out to me, to the government and to the media, crying out for help because they are scared and they are vulnerable and they look around the world and they see what has happened to other women in prisons where violent male rapists have been housed.

   Why has this situation happened? It is because the government cannot seem to crack the code of what the word ‘woman’ actually means. Thankfully, I have the formula: ‘woman’ is a noun and it refers to an adult human female. We are also losing the right to even speak up and disagree about this. We are labelled vile. We are labelled bigots. But it is not hateful to ask for sex-based rights. They are, after all, originally a category of human rights. Will the Minister for Women Natalie Hutchins let women speak to her and join us on the steps of Parliament on 18 March for the listening post and actually hear what women have to say on this issue?

3. Following Mrs Deeming’s speech, there was an exchange between Dr Bach and Mrs Deeming as they were leaving the Legislative Assembly Chamber.

4. Incredibly, the parties included in the Agreed Factual Narrative their disagreement about the contents of this exchange.

5. Dr Bach said in his affidavit that, following Mrs Deeming’s speech, she approached him and said, “Sorry. That was the last time” (CB:32, 392[9]).  He gave evidence that he “understood” her comments “to be an apology for stepping out of line with her speech in a way that was contrary to the interests and stated position of the Party”.

6. Mrs Deeming said she said to Dr Bach words to the effect of, “Don’t worry; that’s the last one for the year” (CB:2, 68[36]) and that she meant “the last women’s rights event for the year”.

7. Quite how it could be imagined that their differing views about the meaning of some passing remark made by Mrs Deeming to Dr Bach could have any bearing on any serious and substantial issue in this proceeding escapes me.

8. On 11 March, Dr Bach gave an interview to Joy FM.  The recording of this interview is Ex R548 and a transcript of the recording is Ex R549.

9. During the interview, Dr Bach was asked about Mrs Deeming’s comments that something called “the Safe Schools program” had been devised by “paedophilia apologists”.  Dr Bach said in cross-examination that “paedophile” is a toxic, dreadful, homophobic and common trope used to describe members of the LGBT community and transgender people (T909.44–45, T919.43–44, T925.46–47, T926.14–15, T928.18).

10. The same day, Mrs Deeming published the following tweet (Ex R16; CC:215):

11. On 14 March, Mrs Deeming published the following tweet (Ex R15; CC:243):

12. Also on 14 March, Mrs Deeming sent an email to the Department of Parliamentary Services regarding security at the LWS rally (Ex R13; CC:242).

13. On 15 March, Mr Woff sent a WhatsApp message to Mr Johnston informing him that Mrs Deeming was attending the LWS rally (“Anti-trans rally on the front steps tomorrow, Moira attending”) (Ex A36; CC:246).

14. A series of articles were published in the media about Ms Keen and other LWS rallies that were conducted in Sydney, Brisbane and Perth between 10 and 14 March 2023.

15. On 10 March, the Daily Mail Australia published an article entitled “Cops on high alert as controversial UK women’s rights campaigner who has been slammed as ‘transphobic’ prepares to give speeches on tour of Australia” regarding Ms Keen’s upcoming rally in Sydney (Ex R12).  Among other things, it quoted a group called “Pride in Protest” saying that it would be protesting Ms Keen’s “vile bigotry” and that “[t]his far right politics needs to be stopped”.  It reported that Ms Keen allegedly posed with a campaigner who celebrated Winnie Mandela’s death, and had said access to abortion and contraceptives need to be rolled back for children and teenagers.  It also reported that she has spoken alongside someone called Christopher Barcenas, who was said to be a member of the “Proud Boys” and present at the 6 January 2021 Capitol riots in Washington DC.  It quoted Ms Keen purportedly saying, “In today’s money, because being transphobic means that you say ‘a woman doesn’t have a penis’, and probably I am transphobic”.  Ms Keen is also reported as saying she “does nothing to invite controversy” but she’s “so influential, trouble follows her.”

16. On 11 March, the Sydney LWS rally was the subject of an article in The Weekend Australian, entitled “Protesters clash at anti-trans rally in Sydney” (Ex R329).  The article said, among other things, that members of trans advocacy groups chanted, “Posie Paker you can’t hide, you’ve got Nazis on your side”.

17. On 13 March, the Brisbane LWS rally was the subject of an article in The Courier Mail, called “Controversial UK activist Kellie-Jay Keen leads Brisbane protest” in which Ms Keen was reported as saying that she does not “think trans is a thing”, and described it as a “dirty fetish” and a “cult” (Ex R175).  The article included quotes from counter protesters who said the far right “turn out in droves to support” Ms Keen.  It also reported that counter protestors detailed links Ms Keen had with “Proudboy activists, Hungarian politician and Holocaust denier Hans Lysglimt Johansen, Canadian white-supremacist Jean-François Gariépy and American talk show host Tucker Carlson.”

18. On 14 March, the Perth rally was the subject of an article in The West Australian, called “LGBTQI in Perth protest over visiting anti-trans activist Kellie-Jay Keen” (Ex R330).  It was reported that LGBTQI protesters shouted, “Posie Parker you can’t hide, you have nazis on your side”.  The article went on to say, “It is unclear whether the reference to nazis by protesters referred to Ms Keen’s appearance in videos with white nationalists or an event she organised in January, at which one of the speakers quoted Adolf Hitler…”

19. Mrs Deeming spent a little time on Twitter (now known as X) reading and responding to tweets the night before the LWS rally.  Mr Pesutto refers to these tweets at RCS Schedule A [11.15]–[11.23] and RCS Schedule C [5]–[16], and says they show that Mrs Deeming knew about alleged links between Ms Keen and the “far right” before the rally.  For example, one Twitter user posted, “Why are [you] ignoring her [Ms Keen] associating with far right groups [Proud Boys] that were involved in the January 6^th Capitol riot?” to which Mrs Deeming replied, “You can hold me to account for the policies I advocate for, not for any other views held by other people, on the basis that I “associated” with them. That’s ridiculous …” (RCS Schedule A [11.21]).

    18 March 2023

    The LWS rally

20. On 18 March, Mrs Deeming attended the LWS rally in Melbourne, which was held on the steps of Parliament House.

21. A detailed narrative and pictorial chronology of the LWS rally, as agreed between the parties, which runs to 58 pages, is set out in a document entitled “Agreed Chronology of the Let Women Speak Rally”, emailed to chambers (with leave) after the completion of the trial (but not yet electronically filed).

22. The sources for that chronology were:

    (a)the unchallenged evidence of Mr Fernando, a videographer and independent journalist who filmed the LWS rally, in his affidavit dated 27 May 2024 (at CB:7), and its exhibit “RF-1” (RF-1);

    (b)the first audio-visual recording of the LWS rally filmed by Mr Fernando using a high-definition single-lens camera which was mounted to a handheld camera mount (the Fernando HD footage) (Ex R180);

    (c)the second audio-visual recording of the LWS rally filmed by Mr Fernando using an iPhone which was directly streamed via Facebook Live to his Facebook page (the Fernando stream) at page 1 of RF-1 and at CC:254;

    (d)the audio-visual recording taken by Ms Keen which was livestreamed on and then subsequently uploaded to her YouTube page (the Keen footage) (Ex A137); and

    (e)the audio-visual recording entitled “Let Women Speak Melbourne 2023 Highlights” published on YouTube by “The Unshackled” (the Unshackled footage) (Ex R522).

23. I set out below a summary of the key events of the LWS rally, which is drawn from the agreed chronology.

24. At approximately 11.42am, Mr Fernando approached the north end of Spring Street where a police line had formed (the north police line) (CB:7, 147[11]).  He observed that a group of a dozen men dressed in black approached the north police line (CB:7, 147[11]).  They were carrying an Australian flag and a rolled-up banner.

25. Mr Fernando gave evidence that around this time he observed that “a large group of counter protesters had formed on Bourke Street” (the Bourke Street protesters) (CB:7, 147[15]).

26. At around 11.43am, the men in black (who were referred to in the agreed chronology as the Nazis) stood in a line opposite the north police line and unfurled a banner which read “Destroy Paedo Freaks” (the banner), which was displayed towards the south end of Spring Street.  The crowd could be heard chanting, “Fuck off Nazis, fuck off” (CB:7, 147 [13]; Fernando HD footage at 2.45–3.00).

27. At approximately 11.55am, Mr Fernando heard “police sirens and loud drumming coming from the north end of Spring Street” (CB:7, 148[19]).  A large number of protesters carrying red flags (described by the parties as the Socialist Alternative protesters) emerged from the far north end of Spring Street (CB:7, 148[21]).  The police formed a further line (the far north police line) preventing the Socialist Alternative protesters from entering the Parliamentary precinct (Fernando HD footage at 14.00–14.12).

28. At around that time, the Nazis faced the north, displayed the banner, and performed the Nazi salute in the direction of the Socialist Alternative protesters (CB:7, 148[23]; Fernando HD Footage at 14.15).

29. Between approximately 11.57am and 12.04pm, the Socialist Alternative protesters started chanting, among other things, “Posie Parker you can’t hide; you’ve got Nazis on your side” and “fuck off, Nazis, fuck off” (Fernando HD footage at 15.56–17.30, 20.20–21.01, 21.55–22.55).

30. At 12.03pm, Ms Jones (using the handle @angijones) made the following post on Twitter (CC:742):

31. At approximately 12.06pm, Ms Keen commenced livestreaming the Keen footage (Ex A137).

32. At 12.07pm, the official page of Let Women Speak (using the handle @StandingforXX) posted the following on Twitter (CC:743):

33. At approximately 12.09pm, Mrs Deeming and Ms Keen walked from the car park to the steps of Parliament through the Parliament House annex (Keen footage at 3.00).  Ms Keen then entered the footpath on the south end of Spring Street and was escorted by private security and police to the steps of Parliament House (Keen footage at 4.30–5.30).  Ms Keen was then seen to emerge from the steps of Parliament House with Mrs Deeming.

34. At approximately 12.15pm, Ms Keen commenced setting up cameras and microphones in front of a large banner that read “#let women speak” (Fernando HD footage at 34.40).

35. At around the same time, the Nazis were standing on the north end of Spring Street, behind the far north police line, displaying the banner, facing south.  The Nazis, whilst maintaining a line, began to approach the Parliamentary precinct.

36. The Nazis then turned to face the Socialist Alternative protesters on the north end of Spring Street and displayed the banner in their direction.

37. At approximately 12.18pm, Ms Keen mounted the first few steps of the south end of Parliament House and began speaking into a microphone in front of the #let women speak banner, facing west towards the LWS rally attendees and the Bourke Street protestors.

38. Seventeen LWS rally attendees, including Mrs Deeming, then took turns to speak in front of the #let women speak banner, from approximately 12.24pm until 1.42pm.  On two occasions, the speeches were interrupted by “intrusions” from counter protestors.

39. At approximately 12.33pm, the Nazis started to mount the steps of Parliament House.  As they stood on the steps, two people in front of them displayed a banner that read:

    PROTECT OUR CHILDREN

    STOP THE MORAL DECAY OF SOCIETY

    SILENCE IS NO LONGER AN OPTION

40. At approximately 12.36pm, Mr Thomas Sewell (who, as was accepted by both parties, was the leader of the Nazi protestors) was standing on the footpath at the base of the steps of Parliament House on the north end of Spring Street, whilst the other Nazis were standing on the fifth or sixth row of the steps of Parliament House.  Mr Sewell could be heard to be speaking through a megaphone.  He said:

    We are here to destroy the fools that are destroying our children. We are not here to conserve. We are revolutionaries. What that means is that, it is not good enough for the politicians to allow this to happen. It is not good enough for the schools to teach sodomy and globalism to our children. The reason why we are here is because it is not good enough what’s currently going on under our political solution. It is our belief, that a revolution is coming.

    It is our belief that these communists, paedophiles and trannies have infiltrated every single institution of this country across the West. They are not just coming for your children, they are coming for everyone. They cannot breed. They have castrated themselves, chemically, psychologically and spiritually. We wish for the survival and preservation of our people. We are not here to have a conversation with these people. We are not here to make a compromise with these communists. We are not here to be nice and friendly. We are revolutionaries and we are here to destroy the sick and rotted society that has left us all out to dry.

41. Mr Sewell then engaged in a “call and response” with the Nazis behind him, who chanted while repeatedly performing the Nazi salute.

42. During Mr Sewell’s speech (from approximately 12.36pm to approximately 12.38pm), Ms Keen could be heard speaking concurrently about the second intrusion at the LWS rally.

43. At approximately 12.48pm, the Nazis dismounted the steps of Parliament House and began to walk towards the north end of Spring Street.  A police officer stopped them and led them to cross Spring Street towards the footpath near Bourke Street (Fernando HD footage at 1.06.43).

44. Two more police officers approached the Nazis, who then began to perform the Nazi salute pointed in a northerly direction, where the Socialist Alternative protesters were still gathered (Fernando HD footage at 1.06.54).

45. The Nazis, as they turned to walk south on Spring Street, continued to perform the Nazi salute towards the protesters that had gathered on and around Bourke Street (Keen footage at 1.07.11).

46. Just after 1pm, the Socialist Alternative protesters emerged behind the Bourke Street protesters, further west on Bourke Street.  They were seen to approach the Bourke Street protesters and ultimately join them in standing on Bourke Street opposite Parliament House.

47. At around this time, police on horseback, who were previously on the far north police line, began to reinforce a line of police along Bourke Street (Fernando HD footage at 1.20.48).

48. At approximately 1.16pm (Keen footage at 1.10.01), Mrs Deeming commenced her speech which concluded at approximately 1.18pm (Keen footage at 1.12.06).

49. Mrs Deeming read a message from a Muslim friend of hers as follows:

    Alright. My name’s Moira Deeming I’m a newly elected MP in the Victorian Parliament. People told me that I only got elected because nobody knew what I thought, but I’ve doing this for fifteen years with my friends in the Greens party and the Labor party and every party conceivable. Today, I’m actually going to read a message from a Muslim friend of mine who was too afraid to be here because of behaviour like that. She has said that she came to Australia because she knew that in Australia human rights were advocated for strongly and she would have protection in Australia. She thought that Australia was a paradise, especially for herself as a woman. And she thought that in Australia everybody, regardless of religion, ethnicity, sexual orientation any other belief of any other kind they’ve got to respect each other’s beliefs and boundaries. And now she is devastated to find out that she has less rights in Australia than she did back home. She has said that boundaries are the emotional, mental and physical fences of every human that are erected in order to protect and maintain our psychological and physical needs, whether it be a human or an animal and if an animal can understand and respect boundaries, why can’t they? She’s seeking that the government will do their job and stand up for the rights that she was promised when she came to Australia lawfully and legally. And then she said, “if the LGTBQI can have their rights, that’s fine, but why does it involve taking away everybody else’s rights?” And she wants to say a big thank you to everybody out here today and especially Kellie-Jay. Thank you.

50. At approximately 1.42pm Ms Keen began making closing remarks, and at around 1.47pm she ended the livestream of the rally.

51. I have rewatched the video evidence of those events.

52. It is fair to say that depicts chaotic scenes.

53. Mr Fernando’s footage, in particular, continuously weaved between the various groups of protestors and counter protestors.  There was a cacophony of yelling, chanting, clapping, banging of drums and saucepans, rattling of tambourines, blowing of whistles and wailing of sirens.  Numerous people spoke (often simultaneously) on megaphones.  The noise largely seemed to emanate from the Bourke Street protestors, but it is sometimes difficult to tell from Mr Fernando’s footage because he was constantly moving around.

1. Protestors waved flags of different kinds, and held homemade signs and banners promoting various agendas.  Police officers traversed Spring Street on foot and on horseback.  Mr Fernando captured a number of altercations and various exchanges of angry words.  And while the lines formed by the police mostly separate the various groups, there remained a flow of people wandering up and down Spring Street.

   After the rally

2. At 2.20pm, a journalist sent to Mr Southwick two links with screenshots.  The first was a screenshot of a video of Nazis performing the Nazi salute on the steps of Parliament House.  The second was vision of police walking Nazis through the area around the steps of Parliament House (Ex R181).

3. Mr Southwick then telephoned Mrs Deeming.

4. They gave different evidence about what precisely was said, but Mr Southwick and Mrs Deeming did agree that Mr Southwick said that he had seen photos of the Nazis performing the Nazi salute in Spring Street; that the matter was serious; and that Mrs Deeming needed to denounce it in a press release.

5. Mrs Deeming deposed that after her conversation with Mr Southwick, she told Ms Keen about his request.  She gave evidence that she asked Ms Keen “if we could find a way to make it clear those men had nothing to do with us in a way that was not degrading and did not deflect the focus from the purpose of the rally.”  She further deposed that Ms Keen “suggested we could do a livestream where we focused on the women and how brave they had been and what a success the day had been and that we could mention the idiot Nazis in passing as having been unwelcome intruders, but that she would not be issuing a grovelling media statement.”

6. After speaking to Mrs Deeming, at 2.55pm Mr Southwick exchanged text messages with Mr Brad Battin MP, then Shadow Police Minister (Ex R182; CC:264).  He then spoke to Mr Battin and they agreed to issue a joint statement condemning the Nazis.

7. Mr Southwick then telephoned Mr Woff.  They had a brief conversation about a draft press release.  At 3.04pm Mr Woff sent a WhatsApp message to Mr Southwick with the draft press release (Ex A138; CC:265), which read:

   Todays [sic] incident on the steps of Parliament are a shock to every Victorian who values our inclusive, tolerant and multicultural community.

   Right wing extremists are becoming more aggressive and emboldened and despite recent efforts to tighten laws to protect the community from such intolerance, this behaviour continues seemingly without consequence.

   This behaviour is simply acceptable [sic]. We cannot allow neo-Nazis to goose step and salute on the front steps of our democracy with impunity.

   I have formally raised this issue with Victoria Police for potential breach of anti-discrimination legislation and will continue to push for those involved to be held to account.

8. At 4.41pm, Ms Jones published a post on Twitter which read, “Nazis and women want to get rid of paedo filth. Why don’t you?” (the Jones tweet).  The Jones tweet was part of an exchange, which read in full:

9. At 4.42pm, Mr Southwick posted a tweet condemning the Nazis, as follows: “Today’s incident on the steps [sic] Parliament House is an affront to every Victorian who values our inclusive, tolerant and multicultural community.  The behaviours today by neo-Nazis are a deliberate attempt to incite hatred and violence and are nothing short of sickening” (Ex R185; CC:270).

10. At 5.37pm, Mr Josh Burns MP, the Federal Labor Member for the seat of McNamara, posted a tweet with a screenshot of a media statement headed “Statement on Neo-Nazis in Melbourne CBD” (Ex R186):

    The ugly alliance between anti-trans bullies and neo-Nazis on display in the city today was extremely confronting.

    Both groups seek to bully and blame minority groups in their dark ideology. Scapegoating minorities is their business model, and it has no place in Australia.

    History showed that minorities, including the LGBTIQA+ community, have been targeted before. It’s nasty, its bigoted and it should be called out.

    The brazen marching with neo-Nazi salutes in front of the Victorian Parliament is unacceptable. This is a time for us to consider whether tougher laws are needed.

11. At 5.59pm, the joint press release of Mr Southwick and Mr Battin was released to the media by Mr Woff (Ex A141; CC:274).  It read as follows:

    Today’s incident on the steps [sic] Parliament House is an affront to every Victorian who values our inclusive, tolerant and multicultural community.

    The behaviours today by neo-Nazis are a deliberate attempt to incite hatred and violence and are nothing short of sickening.

    These shameful individuals and the hateful ideology they push have no place in our state and must never be tolerated.

    The Victorian Liberals and Nationals continue to support the frontline officers Victoria Police, who continue to focus on community safety in frequently dangerous and complex situations.

    The Andrews Labor Government must join with the Liberals and Nationals to ensure Victoria Police have the powers, resources and training to stamp out these shocking acts of hate.

12. At 6.03pm, Mrs Deeming published the following tweet (Ex A142; CC:275) (18 March tweet):

13. That evening, Ms Keen, together with Mrs Deeming, Ms Jones and Ms Katherine Deves, filmed the livestream which Ms Keen had suggested, starting at 7.46pm.  (Ms Deves is a former Federal Liberal Party candidate who also spoke at the LWS rally.)  The video was uploaded to YouTube at 8.13pm (Ex A258).

14. That video and a transcript of it were in evidence (Ex R37 and Ex R38 respectively).  It was sometimes referred to as “the champagne video”, because each of the women (except Ms Jones) sipped a little champagne during the course of it (it lasts 24 minutes in all).

15. Counsel for Mr Pesutto sought to make much of it during the hearing, so it is necessary to set out the transcript of the relevant exchanges, as follows:

    KJK [Ms Keen]: What a day! So I’m here with some evil TERFs [trans-exclusionary radical feminists] uh down under. We’re calling this, I’m calling this TERF talk down under it’s a concept that I’ve come up with [*all laugh*]. I have Angie Jones here, who is the TERF talk down under content deliverer. I’ve got Kathy, Katherine Deves, uh myself I’m Kelly[-Jay] and this is Moira Deeming who’s an MP and we’ve just had an exceptionally interesting um day  …

    …

    Yeah, ah Kath what about you?

    KD [Ms Deves]: I thought the speeches today were absolutely magnificent um what some of those women got up, they were shaky when they got off the microphone they were so brave again it was such a varied mix of women, varied mix of experiences and if the people who are the detractors or the media who have been and some of whom have been absolutely just remiss in how they’ve reported this if they actually listened to what the women had to say they’d understand what we’re about so I think this is a fantastic record for history and I’m really proud of everyone who worked to put it together today.

    KJK: Yeah me too. I’m particularly I think Australian women are quite funny. I think there was a lot of humour in a lot of the speeches. What about you Moira?

    MD [Mrs Deeming]: Look as a newly elected MP it was really interesting for me and vindicating to see women from every single political party uniting over these basic human rights. It was also wonderful to see uh just how protective everybody was of each other, you know we had a couple of people uh become very violent so some trans activists pretended to be a part of our group.

    Obviously there was that group of masked men who came in, we didn’t know who they were but we were concentrating on these people at the front and you know one woman was knocked unconscious and taken to hospital. I got kicked in the shins a whole bunch of times.

    But they were dealt with within you known under, under, under a minute each, we dealt with them we got rid of them and we just carried on and that’s what we’ll continue to do and it was just a fun day and it was really great.

    …

    KJK: And let me just say for the record and I’m not speaking for anybody else in this room but if somebody comes and poses a risk to women, I’m kind of all right with a bit of, a little bit of violent kind of pulling them out of the way uh proportionate violence um and getting them out of the way and away from women as a risk.

    …

    So we had to wrap up that’s why we finished a little bit sort of quick[l]y and we had to really rush the speeches at the end and then obviously there was some other people occupying the steps which I think we all thought we were told by security were antifa because they were all in black with black masks so we thought they were antifa and they were just over there but I think it’s safe to say, there were so many risks, potential risks in our crowd.

    …

    KJK: But should we talk about, um, to talk about the elephant in the room Moira because you’re going to complain…

    MD: Yes.

    KJK: …because we had, we’re not when we both got there so we had, we were told that well we both thought that there was antifa um and I was told even putting my uh tripod at the top of the steps there was a very militant, there was a very militant police officer that was like get [off] the steps don’t stand on the steps, don’t stand on the steps, don’t stand the steps. Really wouldn’t let us stand there and we had a permit for where we did stand but there were other people that didn’t have a permit.

    MD: Yes so the thing that I found very confusing was that we were assured by the police and as I say, it seems to us while we were there that everything was going well that the police were trying to help us and I think the majority were but when I was alerted to the fact that they were all these masked men coming towards us they were all in black we couldn’t see their faces I thought that the trans rights activists had broken through the line and we’re about to get attacked.

    I honestly just thought this is it yep I’m about to, we’re all about to get attacked. Um but the police were very, very calm and you know they had set up a big buffer zone, they had set up you know a boundary but they were talking to these people and letting them stand on the steps and take photos I was told later that they had a banner or something.

    You know, but then I was also told later that one of our marshals had stood like this with her arms out to stop them from coming in because like me like most women there we thought that they were antifa, they had broken through the lines we were about to get attacked and the police for some reason that I do not understand, ushered them in let them have photos on the steps next to us and then instead of pushing them back out the same way that they came in, took them right through that the middle of the buffer zone that they had been, you know, at great pains to separate us all um from either side of, they just walked them right through the middle and, and then right as they were in the centre in front of all those cameras they did a Nazi salute and that was horrifying but, you know, that was only a split second because then you know they would continue to be escorted out and so I thought oh good they’ve taken them out but it was only later on I thought why did they even let them in here, what, how were they able to keep all those trans rights activists, the ones who were punching horses, how did they keep all of those people away from us but they just welcomed in and let these people in black masks you couldn’t see their faces, no identifying, um

    AJ [Ms Jones]: They looked like black bloc, they did, they looked like black bloc…

    MD: You know, there was no symbols. People are saying, you know, why didn’t you tell the Nazis to leave well there was no Nazi symbols on them I thought they were antifa um until they put their hands up like that I thought they were the trans rights activists um and then when they did that you know they were being escorted out and it was over.

    KJK: Well the funny thing is as well they shout at me you can’t run you can’t hide you’ve got Nazis on your side and they’re really angry shouting that I’m this thing and this apparent thing that they really hate when they those men did that Nazi salute…

    MD: There’s no reaction

    KJK: There was no reaction whatsoever, those trans activists didn’t get more angry didn’t shout didn’t get more agres… they didn’t do anything,

    MD: It was as if they were saying hello. [*Laughter*]

    KJK: Maybe it was that maybe to their friends but um I think it’s very interesting because I think any one of us recognisable women had walked that same bit down there they would have broken through they would have attacked us and I just… something about all of this doesn’t make any sense it feels really off, it feels like they were either… I mean look in the UK we had police impregnating women who were animal rights campaigners right and we, we had those police um infiltrating groups.

    I don’t think it’s beyond the wit of anyone to think that that either was uh TRAs dressed up or police or just… something was just off because there wasn’t enough violence between the two men. …

    MD: Best case scenario was a massive mistake by the police to let these unidentifiable masked men in because all of us women were terrified.

    KJK: Yeah.

    MD: We did not understand why they were there. The police had been successfully keeping everyone else away and then all of a sudden there were these terrifying big strong masked men and we didn’t know why they were there and we know now that the police knew that they weren’t with us because they obviously escorted them away from us and away from the protest and uh and that our own marshals had asked them to leave.

    KJK: But I don’t so I, I guess it’s not really for us to work out why the police suddenly escorted them away.

    MD: Through the middle.

    KJK: I mean that’s nuts but I wonder what prompted them to leave because I didn’t really notice them.

    AJ: Yeah, they didn’t come near us. We all had our backs to these guys on the on the um steps we had our backs to these blokes and so there’s a few of us milling around once we realized they weren’t a threat we kind of turned our backs and we’ve just got on with it yeah and so the reason that there’s no photos out there of the Nazis with us “the Nazis” inverted commas with us is because they were never with us they were like way over there.

    We all had our backs we were facing the opposite direction so when the police marched them out they marched them towards the trans rights activists past the trans rights activists, they saluted at the trans rights activist and the trans rights activists didn’t even blink and kept yelling at us women.

    KJK: Yeah.

    KD: It’s very strange.

    …

    KD: … it is really quite viscerally scary and you think… you have those moments where you think my God all I’m doing is standing here saying: women have the right to sex based rights, stop messing with our kids, let us have our freedom of speech and this is the response people need to start waking up to the fact as to how powerful and how dangerous this movement really is I mean as we know they’ve infiltrated our, our institutions Our Judiciary our parliaments our media and so on and the fact that even the police are afraid of their violence I mean we need to ask who, who are the baddies here people because I don’t think it was the group of middle-aged women standing there in our sun hats a few with our husbands listening to other women speak.

    KJK: But look that that that won’t stop us uh next stop is wherever I’m going next Tasmania, Hobart, um and then it’s going to be Canberra and then we’re coming to uh New Zealand which will be interesting I’m not even sure goodness knows I don’t think anything can be quite as um Exciting um as today but yeah the speeches from Australian women have just been sublime uh it’s like they’ve been holding their breath for quite some time and so have just come out with the most um wonderful things and the f word said in an Australian accent is particularly wonderful but thank you all of you thank you for your hard work in making this.

    MD: Thank you for coming to Australia thank you for coming to Melbourne, we appreciate it.

    KJK: Well here’s to us being amazing cheers everyone [*all clink glasses*] and goodbye people at home.

    KD: Good evening everyone.

    KJK: Bye.

16. That same evening, Mr Pesutto attended the Victorian Multicultural Gala Dinner, together with Mr Southwick and Ms Crozier.

17. At 7.16pm, Ms Staley sent a text to Mr Pesutto with a link to an article in The Australian about the Nazis at Parliament House, which pictured Mrs Deeming but did not name her or identify her as an MP.  Ms Staley also sent a screenshot to Mr Pesutto of the pictures in The Australian article, including one of Mrs Deeming, and informed him “Moira Deeming at a rally with neo-Nazis today”, as follows (Ex R189):

18. Ms Staley and Mr Pesutto then exchanged texts.  Ms Staley said, “You need to consider expelling [Mrs Deeming] from the Party room for consorting with nazis.  You can’t have that link and be elected to government.”  Mr Pesutto responded, “Agree”.

19. At 7.21pm, Ms Staley also sent a text message to Mr Southwick to the same effect (Ex A259).

20. From 7.30pm, Mr Pesutto exchanged text messages with Mr Southwick about it (Ex R191; CC:278).

21. At 9.14pm, Mr Matthew Guy MP, Liberal Member for Bulleen in the Legislative Assembly, sent a text message to Mr Pesutto and Mr Southwick (Ex R192; CC:279) volunteering to move an expulsion motion against Mrs Deeming: “Just letting you know that if you want an expulsion motion moved on Deeming, and no one else will do it, I will”.

22. Either that evening or the following morning, Mr Pesutto and Mr Southwick discussed the LWS rally and their views that Mrs Deeming’s attendance was likely to hurt the Liberal Party. In the course of that discussion, Mr Southwick told Mr Pesutto he had spoken to Mrs Deeming about the LWS rally, and had told her that she needed to immediately distance herself from it and the neo-Nazis who attended (CB:30, 337[54]–[55]).

    19 March 2023

23. At 7.13am, Ms Jones published the following tweet (Ex A147; CC:291):

24. At 8.25am, Mr Pesutto sent a text message to Mr Pintos-Lopez, who had started in the role of chief of staff to Mr Pesutto a few days earlier, indicating he had spoken to Mr Southwick about meeting with Mrs Deeming at 5pm that day.  Mr Pesutto asked Mr Pintos-Lopez over the phone to conduct some research on the LWS rally and what had happened at it (Ex A148; CB:30, 337[65]).

25. At 9.20am, Mr Adam Bandt MP, Federal Member for Melbourne and Leader of the Australian Greens, posted a string of tweets on Twitter (Ex R30; CC:293), which grouped together read as follows:

    I’m disgusted by the anti-trans rally in Melbourne yesterday, protected by their allies: saluting neo-Nazis. The banners they march under and the hate they espouse have no place here or anywhere. The rise of far-right extremism and white nationalism has ASIO’s directors ‘gravely concerned’, with the Australian Army today uncovering links to neo-Nazi groups within their own ranks. The alarm bells have been ringing for years. The Government needs to unblock its ears. Footage of police kneeing an anti-fascist protester in the back of the head, whilst making way for neo-Nazis to march & salute down Spring Street is deeply disturbing to watch. This is not Melbourne. Every time a powerful figure in the media or politics uses the trans community as a political football, a masked coward grows more confident. Stop. The words we say matter, so let mine be unequivocal and clear: Trans Lives Matter.

26. Between 9.45am and 10.46am, Mr Fernando published a series of tweets about the LWS rally, some of which embedded footage Mr Fernando had recorded on the previous day.  These tweets are referred to at ACS [142] and [145].

27. Shortly after 9.51am, Mr Pesutto, Mr Southwick and Mr Pintos-Lopez had a conference call.  Mr Pintos-Lopez deposed that he advised that they should proceed “carefully and methodically”; that they “needed to slow down and not take any action precipitously”; and that they “first needed to gather and understand all the relevant facts”.  His affidavit explained as follows (CB:37, 441[17]):

    I said words to the effect to Mr Pesutto and Mr Southwick that we needed to manage any political and reputational implications for the Party of Mrs Deeming’s attendance at the Rally and the potential connection between the Rally organisers and the neo-Nazis carefully and methodically. I said that we needed to slow down and not take any action precipitously and that we first needed to gather and understand all the relevant facts. I said words to the effect that any action that the Leadership Team might take needed to be measured and justified. I said that I did not believe that we should do anything other than gather information on the Sunday and that if any action was required, the reason to act needed to be explained to the party room and to the electorate, if necessary, during the week and prior to taking that action if any. I understood from what Mr Pesutto and Mr Southwick said following my giving them that advice that they wished to act that day rather than slowing down as I had advised.

1. Mr Deeming gave evidence he is worried “she will not recover” (CB:4, 131[103]); Mr Duke gave evidence that he “fear[s] it will be difficult, and perhaps impossible, for her to move on and put this behind her” (CB:6, 143[20]); Ms Hughes gave evidence that Mrs Deeming is worried that the publications “destroyed her personal and political purpose in life” (CB:14, 209[20]); Ms Thompson gave evidence that she does not think that Mrs Deeming “will ever be the way she was before” (CB:25, 287[15]); and Ms Walton gave evidence she fears the publications “have broken [Mrs Deeming] and that she will never be the same” (CB:26, 294[22]).

2. I am therefore satisfied that damages awarded must reflect the fact that Mrs Deeming has suffered real and severe hurt to her feelings.

   The seriousness of the defamation

3. The imputations that I have found to be carried by each of the publications are obviously serious, and any award of damages must take into account the seriousness of all the meanings conveyed.

4. It follows that the need for vindication in this case is high and any award of damages must be “sufficient to convince a bystander of the baselessness of the charge[s]”: Broome v Cassell & Co Ltd [1972] AC 1027 at 1071 (Lord Hailsham LC), cited by Lee J in Lehrmann v Network Ten Pty Ltd (Trial Judgment) [2024] FCA 369 at [1014].

   Evidence of Mrs Deeming’s reputation

5. Mrs Deeming adduced a wealth of evidence, which I accept, to establish that prior to 19 March 2023, she enjoyed a good reputation.

6. There is considerable evidence of her good reputation in the objective facts, namely that Mrs Deeming:

   (1)was elected to the position of Councillor for the City of Melton in 2020, where she served from 2020 until 2022;

   (2)won preselection for the number one spot on the Liberal Party ticket for the Western Metropolitan Region in 2022;

   (3)was elected as the Liberal Party Member of the Victorian Parliament for the Western Metropolitan Region on 26 November 2022, with the second highest “below the line” preference vote of all newly elected MPs behind only Ms Heath; and

   (4)was asked by Mr Pesutto, as Leader of the Liberal Party, to run for Liberal Party Whip in the Legislative Council and was unanimously voted to that position in December 2022.

7. She also enjoyed a good reputation among her family and friends.

8. Her husband gave unchallenged evidence that in general, those he knew who also knew or knew of Mrs Deeming – including their family, friends, and work colleagues – regarded her as a friendly, warm and positive person.  She was regarded as someone who truly cared about others and respected as holding strong principles.  Over the years to 19 March 2023, he “was amazed at how many people ended up as fierce supporters of her because she was friendly and respectful” (CB:4, 119[38]).

9. Ms Hughes, who has known Mrs Deeming since their days at university and now works for her as an administrative assistant, gave unchallenged evidence that, within her social circles prior to 19 March 2023, Mrs Deeming “was well respected and had a reputation for being honest, driven, devoted to her Christian faith and dedicated to helping others”. Mrs Hughes’ family “admired her honesty and regarded her as a truthful person” (CB:14, 206[7]–[8]).

10. Ms Gorman, who works for Mrs Deeming as an electoral officer, and has known Mrs Deeming since early 2019, gave unchallenged evidence that, within the circles in which she mixed, Mrs Deeming had a reputation for being “knowledgeable, kind and generous” and “as someone who was very giving of her time; wanted to help others; and stood by her principles” (CB:8, 159[6]).

11. She also enjoyed a good reputation among faith communities.

12. Mr Deeming gave unchallenged evidence that, prior to 19 March 2023, Mrs Deeming’s reputation amongst the church communities of Brimbank Presbyterian Church and Melton Presbyterian Church was as someone who was friendly and warm, fun and inclusive and willing to serve; that her work as the Researcher for the Church and Nation Committee of the Presbyterian Church (CNCPC) was highly regarded; and that he would often hear from Ministers that they loved her work and found it helpful in understanding the issues they were facing in the world of politics and that they would tell him they would often share her work with their congregations (CB:4, 119[39]).

13. Mr Duke, who is a Senior Minister of the Presbyterian Church and a member of the CNCPC, gave unchallenged evidence that, within the Presbyterian community within which he mixed, Mrs Deeming had a reputation as “someone who had a good heart and a deep desire to help others and protect them from harm, especially children” (CB:6, 140[5]). Throughout her campaign for election to the Legislative Council, and afterwards, there “was broad support within the members of the Presbyterian Church community” for her and she “was seen as a cornerstone of the Presbyterian community and … as a person who embodied its values” (CB:6, 140[5]–[7]).

14. Mr Duke also deposed that Mrs Deeming “was respected across other faith communities, particularly within the Islamic and Hindu communities in Western Melbourne” (CB:6, 141[8]).  He gave evidence that, during her campaign for election, Mrs Deeming was invited to speak at a mosque in Western Melbourne, which was an “honour”.  She was also “regularly invited to and attended religious gatherings across Western Melbourne”.

15. Ms Hughes gave unchallenged evidence that, within the faith community, Mrs Deeming “was described as being a very ‘Godly person’, meaning she is devoted to her faith and displays the teachings of the Bible in her everyday life” (CB:14, 206[8]).

16. Mr Smith, who resigned from Parliament in July 2023, gave unchallenged evidence that Mrs Deeming was liked and respected by people within various Islamic communities throughout Victoria (CB:23, 268[11]).  He deposed that she was invited to speak in the men’s area of a mosque, which “was a big deal” because in his experience most mosques separate men and women and would not allow a woman to speak in person to the men in the men’s area, such that this indicated to him “the level of respect that this particular community had for [Mrs Deeming]”.

17. Ms Walton met Mrs Deeming through the Brimbank Presbyterian Church in Taylors Lakes in about 2009. She gave unchallenged evidence that Mrs Deeming was loved and highly respected within the Brimbank Church community prior to 19 March 2023 (CB:26, 291[5]–[8]). She was known as a person who sincerely embraced the well-accepted creed within the Presbyterian Church that no one is perfect but God and as someone who “refrained from judging others for their imperfections” and “was very forgiving and always showed people grace” (CB:26, 291[5]). She was also “someone that everybody at church wanted to know and be around” (CB:26, 291[7]) and they “looked up to her and often asked her for advice on difficult life decisions”, and they “always valued [her] opinion” (CB:26, 291[8]).

18. A number of witnesses agreed, however, in cross-examination that Mrs Deeming’s good reputation in faith communities remains largely undiminished.  See T369.16–34 (Mr Duke); T470.12–20 (Ms Walton); and T1071.23–28 (Ms Wong).

19. There was also a lot of unchallenged evidence adduced about Mrs Deeming’s good reputation in the Liberal Party, including from her husband, Ms Gorman, Ms Heath, Ms Hughes, Mr Riordan, Mr Ruddick, Mr Smith and Ms Thompson.

20. Mr Mundine gave this unchallenged evidence about Mrs Deeming (CB:17):

    1        I am the Executive Chairman at Nyungga Black Group Pty Ltd.

    2        I have been involved in Australian politics since the 1990s.

    3In 1995 I was the first Aboriginal councillor to serve on the City of Dubbo Council.

    4I joined the Australian Labor Party (ALP) in 1995 and in 1999 stood as the NSW Labor candidate for the seat of Dubbo.

    5In 2005, I was awarded the Bennelong Medal for service to the Aboriginal community.

    6Between 2006 and 2007 I served as President of the ALP. I was the first Indigenous Australian to serve as president of an Australian political party.

    7In 2013, then Prime Minister Tony Abbott appointed me as Chairman of the Australian Government’s Indigenous Advisory Council.

    8In 2016 I was awarded an Officer of the Order of Australia for distinguished service as a leader in Indigenous affairs and advocate for enhancing economic and social public policy outcomes for Aboriginal and Torres Straits Islander people.

    9Between 2017 and 2019, I was the Chairman of the Australian Government's Indigenous Advisory Council for the Liberal Party.

    10In January 2019, I joined the Liberal Party of Australia and am still a member.

    …

    Meeting Moira

    12Moira and her husband Andrew have been my close personal friends since I met them in 2019 during a Spectator Magazine lunch. We became friends and I was drawn to Moira and her family because they were lovely and heavily involved in their local community, particularly their local church and the wider Western Melbourne community.

    13As I am based in Sydney and Moira is based in Melbourne, we regularly keep in touch via telephone. If Moira and/or her family visit Sydney, they will often stay with us, and likewise my family and I will often stay with Moira and her family when we visit Melbourne. When I only visit Melbourne for a short time, the two of us will frequently arrange to have coffee or lunch. We socialise regularly and attend social events together. For example, we often go to the football together. We would often attend political functions together, such as Liberal Party events.

    Moira’s Reputation (Prior to 19 March 2023)

    14Before 19 March 2023, amongst the social and political circles in which I mix, Moira was regarded as a lovely, outgoing person who is easy to talk to.

    15I have connections with various political figures particularly within the Liberal Party. Within these circles, prior to 19 March 2023, Moira was highly regarded. She was known within these circles for being very driven, intelligent and well-spoken. People within these circles would tell me they found her approachable and that she was kind and lovely to talk to. She was known within these circles for having a very common-sense approach to her work, particularly as a councillor for Melton. Those who had a professional relationship with her would say she was good to work with and that she was a model leader. For this reason, I was not surprised to learn that, upon her election to the Victorian Legislative Council in November 2022, she was given a leadership role as the upper house whip. In my experience, working across various sectors in government, the upper house whip is a very powerful position which carries authority within the party. In my experience, one is not appointed whip unless the party (and the party leader) think highly of the candidate in relation to their integrity and trustworthiness.

    16Within my social and political circles, Moira was also known to be an exceptional event organiser and would regularly be entrusted to organise rallies and events for the Liberal Party, particularly in Western Melbourne.

    17Amongst the members of the broader Liberal Party who I knew and who knew Moira, she was well respected and was perceived to be a potential leader within the Party and someone who could be a major contributor to the Liberal/National Coalition’s campaign to win government at the next state election. Liberal Party members would frequently tell me that they regarded Moira as an incredible person who was able to unite and rally people from across religious and ethnic groups, particularly in her seat in Western Melbourne.

    18I observed that Moira was well respected and loved by the wider community in Western Melbourne. She was perceived as a very capable electoral member who had great potential to positively impact the communities in Western Melbourne as an elected MP. As part of Moira’s election campaign to the Legislative Council in 2022, she was invited to speak at a Mosque in Western Melbourne. I attended this event with her. I recall observing that she was received very positively, and about 20 volunteers offered to assist in her election campaign as a result.

    19During her campaign for election, I met with many of her campaigners and constituents, all of whom spoke highly of her to me. They told me they believed she was a woman who cared for and was going to fight for the people in Western Melbourne and wanted to represent the local communities. I observed that Moira had a very good rapport with the constituents in her electorate and was well known because of her work in the community as a local government councillor in Melton. I saw that Moira had a strong relationship with the multicultural communities in Western Melbourne, who perceived her as a hard worker for the community. They believed that she wanted to speak for them in Parliament. They would say that she was always giving herself out to help the local community.

    20I recall meeting Mr Pesutto at a post-election celebration in Western Melbourne following the 2022 state election. There had been a huge swing in favour of the Liberal/National Coalition in this region, and one of the only swings the Liberal Party had at this election. He approached me to discuss the campaign and sought my support for the next election. During this conversation, he spoke very highly of Moira and said that it was great to have her in Parliament. He said that he was impressed with the number of volunteers and support Moira had received throughout her campaign.

21. Ms Clark, Ms Wong and Ms Gorman also gave unchallenged evidence to the effect that she enjoys a good reputation with some people on the other side of politics.  Ms Gorman, for example, deposed as follows (CB:8, 159[7]):

    Before 19 March 2023, in the circles that I mixed, I noted that, even amongst people who belonged to different political backgrounds who were in deep disagreement on numerous issues, all held her in high esteem. They, like myself, were drawn to her skills as a public speaker; they saw her as a talented and captivating speaker. They would remark to me immediately or shortly after seeing her speak at conferences and political fundraisers or events that she was articulate, charismatic and clearly supported her arguments with extensive research.

22. And there was also unchallenged evidence abouts Mrs Deeming’s reputation for seeking to stand up for and protect women and children, from Ms Dennis, Ms Hughes and Ms Wong.

23. Ms Wong, the CEO of WFA, deposed as follows (CB:29, 318[13]):

    Before 19 March 2023, Moira’s reputation in my professional circles, and among WFA supporters, was that she was courageous and a person of great integrity who stood up for what she thought was right. My professional circles include women who identify themselves as feminists and are from the left wing of politics. To me, the most striking aspect of this was that Moira was clearly respected by people from opposite sides of the political spectrum, which in my experience is very rare. I observed that Moira was able to work with people who had different political beliefs from herself; she could put politics to the side in order to engage in reasonable and meaningful debates about these issues. Within my professional circles, before 19 March 2023, Moira was greatly respected for this attribute.

    Damage to Mrs Deeming’s reputation

24. Mrs Deeming’s husband, and Ms Hughes, Ms Gorman and Ms Walton gave unchallenged evidence as to the adverse effect of the publications on Mrs Deeming’s reputation.

25. Mr Deeming gave this evidence in his affidavit (CB:4, 122[56]):

    Over the next few days, I began receiving phone calls about the situation from people we knew. I had to reassure them that of course Moira did not ‘attend a rally with Nazis’. I remember one call in particular from a close friend and a previously very strong supporter of Moira who had heard the stories and needed me to reassure them. One ridiculous sentence which stood out was ‘Why was she wearing the same colours as the Nazis?’. It seemed to me that the persons I spoke to believed Mr Pesutto and even after my reassurances they did not seem fully convinced.

26. Ms Hughes, Ms Gorman and Ms Walton gave evidence that they too had similar conversations with people they knew.

27. Mrs Deeming also gave evidence of having been shunned by people as a result of the publications. She said that following the publications she felt “isolated” and as though she were “radioactive” (CB:1, 33[166]). She said that colleagues stopped talking to her and sometimes would cross to the other side of the hallway (CB:1, 33[166]–[167]). As she put it, “[t]his was not just Liberal members. People I previously would say hello to or interact with in Parliament, now would avoid making eye contact with me and look the other way; they would ignore me and cross to the other side of the hall. It seemed everyone had turned against me”.

28. She also gave this unchallenged evidence that on about 17 May 2023 (which was International Day Against Homophobia, Biphobia and Transphobia), someone defaced her photo on her office window.  She exhibited this photograph taken by one of her staffers at around that time:

29. Unsurprisingly, Mrs Deeming said that “[t]his was humiliating but also made me feel extremely unsafe.  It occurred to me that whoever did this could watch me go in and out of the office; they could see me go to my car and follow me home.  I became worried about my safety and the safety of my staff” (CB:1, 52[252]).  She also deposed as follows (CB:1, 52[253]–[254]):

    In October 2023, I attended a meeting in Scotland with two Scottish MPs: Pam Gosal, (MSP for West Scotland (Region)) and Rachael Hamilton (MSP for Ettrick, Roxburgh and Berwickshire Pam). We took photographs together but they said they didn’t want them published until my name and reputation were cleared of association with Nazism. This was a humiliating and upsetting experience for me.

    In November 2023, I was scheduled to speak at a community forum with a Local Government Councillor, Council Watch and local residents at a local Church Hall in Werribee. The Church was inundated with threats and complaints about my supposed Nazism and so the venue pulled out and the event had to be moved outdoors to a park.

30. Mrs Deeming also deposed that since the publications, she has for the first time been branded as an “extremist”, including in a 21 March 2023 article in The Age, and that she continues to be linked with Nazism.

31. Mr Deeming gave unchallenged evidence that a number of people cut off contact with Mrs Deeming after the publications, including former friends and members of the Liberal Party, and that people have “unfollowed” her on Facebook (CB:4, 128[88]).

32. There was also extensive unchallenged evidence from witnesses of Mrs Deeming’s distress at being shunned in various ways by members of her own party, including people she had known for a long time.

33. Witnesses also gave unchallenged evidence of the likely impact of the publications on Mrs Deeming’s reputation.  As Mr Riordan put it:

    In my view, an allegation of being a Nazi or Nazi sympathiser is one of the most serious allegations that can be made about a person, and is like an allegation of being a murderer or paedophile or rapist. I think everyone I know, in my personal and political circles, would share that opinion. Those sorts of allegations never leave a person. Nobody wants anything to do with such a person. This was a cruel thing to be inflicted on [Mrs Deeming].

34. Mrs Deeming gave evidence about “the wave of abuse and hatred” that ensued following the publications, which is set out above under the rubric of serious harm at [590]ff above.

35. Mr Mundine also gave unchallenged evidence about responses he had received to his tweets.  See above at [597]ff.  Prior to Mr Pesutto’s statements about Mrs Deeming on 19 and 20 March 2023, Mr Mundine said that he could not recall ever hearing any suggestion that she was associated with Nazis, or anything similar, and that he had never observed any of the negative sentiments towards her which he described in the tweets he received.

1. Ms Papadimitriou, Mr Riordan, Mr Ruddick, Ms Thompson, Ms Walton and Ms Wong also gave evidence along the same lines – that is, that their online messaging of support for Mrs Deeming was met with responses very similar to those Mr Mundine received.

   Extent of publication

2. Mr Pesutto conceded the following extent of publication:

   (a)the media release: up to 821 persons, the majority of whom were journalists;

   (b)the 3AW interview: approximately 143,000 to 159,205 persons (of whom up to 205 were downloads from the website, with the remainder through the radio);

   (c)the ABC interview: up to (but likely substantially less than) 227,648 persons through live television broadcast (likely substantially less, as many viewers of the combined episode may have watched another part of the broadcast); up to (but likely substantially less than) 12,621 persons on ABC iView (for the same reason); approximately 20,942 through the ABC interview on radio; less than 364 persons via download from the ABC website; a smaller percentage of 134,954 page views;

   (d)the press conference: no extent of publication was admitted but the Court may infer that various journalists were present and comprehended what was said; and

   (e)EMD: by email to 28 members of the party at 6.01pm on 20 March 2023 following publication of an article on The Age website and media enquiries, Mr Pesutto’s office provided a copy of the EMD to various media outlets including the Herald Sun and The Australian, through 15 different journalists.

3. Mrs Deeming contended, by reference to evidence summarised in a 13-page annexure to the written closing submissions, that the “absolute minimum number of views” of the impugned publications was:

   (a)the media release: 739,316.

   (b)the 3AW interview: 151,205.

   (c)the ABC interview: 516,589.

   (d)the press conference: 322,525.

   (e)The EMD: 115,987.

4. Little is to be gained by a minute analysis of the different numbers posited.  The parties were, as the competing figures show, largely ad idem on the extent of publication of the 3AW and ABC interviews.  But on any view of it, publication of each of the impugned publications was extensive and this is to be considered in assessing damages.

   Extent of republication

5. Counsel for Mrs Deeming relied on an annexure to their written submissions about the extent of publication of the impugned publications (being ACS Annexure B).  Republication was relied on solely to “swell the damages”.  (That is an expression in torts cases that dates back to the mid-19^th century.  See Prince Albert v Strange (1849) 2 De G & Sm 652; 64 ER 293.)

6. Mr Pesutto’s corresponding annexure was a 23-page, multi-coloured schedule entitled “Schedule B – Table of alleged republications” (being RCS Schedule B).  It purported to go line by line through each of the republications relied on by Mrs Deeming with a view to showing whether and to what extent the republications republished “the sense and substance” of the impugned publications.

7. The legend to the schedule said that items coloured in green were “[r]epublication of sense and substance admitted and not refuted for alleged republication that was pleaded”; items coloured faded green were “[r]epublication of sense and substance admitted and not refuted for alleged republication that was not pleaded”; items coloured orange were “[r]epublication of sense and substance only arguable and/or arguably refuted”; and items coloured red were “[r]epublication disputed”.

8. The pleaded case about “republication” of the media release, the 3AW and ABC interviews, the press conference and the EMD, as Ms Chrysanthou made clear in her closing address in reply, was intended only to invoke the “grapevine effect” in the assessment of damages.  See T1646.24–T1647.2).

9. As Gummow J said in Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 at 416 [88], “the expression ‘grapevine effect’ has been used as a metaphor to help explain the basis on which general damages may be recovered in defamation actions; the idea sought to be conveyed by the metaphor was expressed by Lord Atkin in Ley v Hamilton (1935) 153 LT 384 at 386 as follows:

   ‘It is precisely because the “real” damage cannot be ascertained and established that the damages are at large. It is impossible to track the scandal, to know what quarters the poison may reach: it is impossible to weigh at all closely the compensation which will recompense a man or a woman for the insult offered or the pain of a false accusation.’”

10. As Steyn J noted in Riley at 217 [103] the “grapevine effect” has been immeasurably enhanced by social media and modern methods of electronic communication.

11. But in any event, Mr Pesutto’s Schedule B concedes that it is “arguable” that many of the identified republications do repeat the sense and substance of the relevant impugned publication and in the case of others, his only complaint was that the identified republication had not been specifically mentioned in Mrs Deeming’s pleading.

12. Parts of RCS Schedule B are exasperatingly obdurate.  For example, it asserted that an article in The Australian entitled “Victorian Liberal Leader John Pesutto’s bid to expel anti-trans MP Moira Deeming splits Libs” dated 22 March 2023 “purports to contain a link to the [EMD]” and that it is thus only “arguable” that it repeated the EMD.  This is an image of the relevant part of the article:

13. The notion that the reader would not have been able to “click here” to read the entire original EMD is improbable in the extreme and the submission should not have been put.

14. RCS Schedule B also asserts that there was no republication of the whole of the EMD in a 21 March 2023 article in the Herald Sun entitled “Libs vote as John Pesutto releases dossier on Liberal MP Moira Deeming following anti-trans rally”.  This is an image of the relevant part of the article:

15. It is asserted that that part of the article does not contain the sense and substance of the EMD because it “[c]ontains a picture of part of the first page of the [EMD]”.  But the exhibit referred to is a screenshot – and the much more likely inference to draw is that the live version of the article embedded the full EMD by clicking on the image depicted above.  And it should never have been contended otherwise.

16. RCS Schedule B also asserted that a 20 March 2023 article in The Age entitled “‘Total Aryan victory’: Nazis the only one happy after parliament protest”, republished under three other mastheads, which quotes Mr Pesutto saying in terms that Mrs Deeming “associates with Nazis”, “arguably” conveys the sense and substance of the 3AW interview.  But it self-evidently does convey and repeat the essence of the defamatory imputation alleged and found.

17. The fact of the matter is that there was significant republication of the sense and substance of the relevant impugned publications.

    Mitigation

18. Mr Pesutto made a submission (at RCS [45.1]) that any award of damages should be mitigated by reference to certain matters, including:

    (a)“the substantial truth of various imputations and the particulars set out in Annexure A of his Defence, already discussed in the Contextual Truth section [of the RCS]”;

    (b)his “repeated public statements that he did not believe Mrs Deeming to be a neo-Nazi, a white supremacist, or anything of similar substance or effect”;

    (c)“the fact that Mrs Deeming made, caused or acceded to public statements falsely asserting that Mr Pesutto has said that she is a Nazi or has Nazi associations or is a Nazi sympathiser, thereby causing or contributing to the damage to her reputation…”;

    (d)Mrs Deeming’s “prior damaged reputation”; and

    (e)“such other evidence as is properly admitted at trial”.

19. As is apparent from my reasons, I do not accept the propositions that underpin them.  I do not accept Mr Pesutto’s pleaded imputations (other than in the case of the EMD where they were similar to Mrs Deeming’s) were carried.  It is true that Mrs Deeming was wrong to say that Mr Pesutto had said that she was a “Nazi”, but I have found that he did say, for example, that she associates with Nazis and it is difficult to see what additional damage Mrs Deeming could have done to her own reputation in that regard.  And she did not have a relevant “prior damaged reputation”, as I have explained.

20. As to (e), nothing of significance in the light of my earlier conclusions was identified.

    Quantum of damages for non-economic loss

21. Mr Pesutto accepted that any republications of the defamatory sense and substance of a publication (unlike the position with respect to serious harm) are matters I can properly have regard to when considering what damages to award (RCS [44.2(b)]).

22. It was also submitted, and I took Mrs Deeming to agree, that I should make a single award for damages, aggregating the harm caused by the separate publications.

23. Weighing up all matters that I have considered above and bearing in mind consolation for such hurt that has been causally related and has been proven, reparation for the harm done to Mrs Deeming’s reputation and the need for vindication of it, and doing my best to ensure that there is an appropriate and rational relationship between the harm sustained by Mrs Deeming and the amount of damages awarded, I have concluded that the appropriate award of damages for non-economic loss is $300,000.

24. An order for interest will also be made.

    Claim for aggravated damages considered

25. In Russell (No 3) at 454 [460], Lee J lamented that “[o]ne is often left with the impression that defamation practitioners perceive a world awash with aggravating factors”.  In this case, Mrs Deeming’s statement of claim lists 27 separate particulars of aggravation, including a promise of “further particulars” to be “provide[d] … in the course of these proceedings”.

26. In counsel’s closing submissions, the particulars were narrowed (ACS [1116]ff) and the case for aggravated damages was put on the basis that Mr Pesutto’s conduct from 19 March 2023 until Mrs Deeming’s ultimate expulsion on 12 May 2023 “was dishonest, malicious, and unethical”. 

27. In her closing address, Ms Chrysanthou, in furtherance of that submission (among others), contended that Mrs Deeming’s “case theory” was that “after what occurred on 23 February, when he was asked questions about Mrs Deeming’s maiden speech, [Mr Pesutto] uses this Nazi appearance on the steps of Parliament as a pretext to just get rid of her” and that “Mrs Deeming was expelled because Mr Pesutto found it annoying to have to answer press questions about her whenever she made a statement about sex-based rights”.  It is fair to say that the case was not run on that basis and it was too late to advance such a case theory in closing, as Dr Collins rightly submitted. 

28. Ultimately, the 27 particulars of the claim for aggravated damages were limited to the following.

29. First, it was alleged that “Mr Pesutto made a decision to remove Mrs Deeming … prior to the 19 March Meeting”; and that “[h]e did so because he disagreed with Mrs Deeming’s views about sex-based rights and safeguards and saw these views as a threat to his own vision of the Liberal Party” and used her attendance at the LWS rally “as a pretext for seeking to expel her”.

30. Secondly, Mr Pesutto “attended the 19 March Meeting thinking there were only two possible outcomes – Mrs Deeming would resign, or, if she refused to resign, she would be expelled” and only “pretended to give thought to a potential third outcome –a statement from Mrs Deeming”.

31. Thirdly, Mr Pesutto made the decision to expel Mrs Deeming without warning to her, and his publication of the media release and the release of the EMD to the press was intended to destroy her reputation and undermine her position ahead of the vote on the expulsion motion (ACS [1118], [1121]).

32. Fourthly, “Mr Pesutto’s repeated use of the word ‘associated’ and ‘associations’ … was deliberately vague and slippery” and “[h]e knew people would understand [the words] in different ways, and that some would think from it that he was suggesting Mrs Deeming was a Nazi or Nazi sympathiser, or that she knowingly partnered with and supported Nazis and Nazi sympathisers”.

33. Fifthly, Mr Pesutto did not include in any of the impugned publications “any reference to what Mrs Deeming had [said] … in the 19 March Meeting, or any of the other exculpatory material he had seen … because it contradicted his narrative and revealed his position to be untenable”.

34. Sixthly, Mr Pesutto reneged on his promise made at the 27 March meeting to make a joint statement.

35. Seventhly, Mr Pesutto “[i]n an attempt to conceal his dishonesty … prepared his own self-serving version of the minutes of the 21 March Meeting and 27 March Meeting”.

36. Eighthly, “[w]hen Mrs Deeming … complained about his conduct, and threatened as a last resort to exercise her legal rights”, Mr Pesutto “conspired to seek for a second time to expel Mrs Deeming” and “persuaded others to sign” the new expulsion motion “and then concealed his own involvement”.

37. Finally, it was submitted that “Mr Pesutto’s conduct of the litigation has been far from ideal”, including because he dishonestly failed to disclose the existence of the recordings of the 19 March meeting.

38. I have had regard only to the particulars relied upon in closing about the matter.

39. A number of those particulars are relied in furtherance of the “pretext” case theory described above.  And as I have said, that was not a case advanced at the hearing and no substantive cross-examination was directed to Mr Pesutto along those lines.   

40. And all of the particulars were founded on the proposition that Mr Pesutto acted dishonestly, including by giving dishonest evidence in the proceeding.  For the reasons I have set out above, although much of the evidence he gave was unresponsive, and some of it – especially his efforts to make a case that the person he nominated to be party Whip “succoured” hateful views and the like – was untrue, I do not accept that Mr Pesutto was dishonest in any of the ways pressed in closing address.  And although his answers about why he did not ask Mr Southwick for a copy of the recordings of the 19 March meeting, and why he did not mention the recordings in his list of discovery, were open to debate, I do not think for the reasons given earlier that the evidence he gave about those matters was dishonest.

41. For those reasons, I decline to make an award of aggravated damages.

    DISPOSITION

42. The only order that I will make upon the publication of these reasons is to adjourn the matter to a date to be fixed, hopefully in the next few days, for the purpose of the parties bringing in orders to give effect to these reasons and to deal with any argument as to the grant of any injunctive relief, and as to the calculation of interest and costs. 

I certify that the preceding eight hundred and forty-nine (849) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O’Callaghan.

Associate:

Dated:       12 December 2024

ANNEXURE A (TRANSCRIPT OF THE 3AW INTERVIEW)

ANNEXURE B (TRANSCRIPT OF THE ABC INTERVIEW)

ANNEXURE C (TRANSCRIPT OF THE PRESS CONFERENCE)

ANNEXURE D (EXPULSION MOTION AND DOSSIER)